President Obama Starts to Take Apart the ‘War on Terror’



By Anthony Dworkin

President Obama has moved quickly to undo the most criticized aspects of the counter-terrorism policy of the Bush administration. On his second full day in the White House, he signed executive orders that directed the Guantanamo Bay detention centre to be closed within a year; reversed the Bush administration’s reinterpretation of Common Article 3 of the Geneva Conventions; required the CIA to use only those interrogation practices approved by the Army Interrogation Field Manual; closed the CIA’s secret prisons and required the United States to give the International Committee of the Red Cross access to all detainees held in connection with armed conflict.The government had already requested a suspension of the military commission trials at Guantanamo for 120 days while it reviews its policy on the trial of terrorist suspects.In a striking dismissal of the legal opinions of the Bush administration, one order states that US officials or agents may not “in conducting interrogations, rely upon any interpretation of the law governing interrogation… issued by the Department of Justice between September 11, 2001, and January 20, 2009.” 

Taken together, the orders represent a comprehensive rejection of the “war on terror” framework put in place by President Bush and his officials in the period following September 11, 2001. The orders also set up a number of reviews and task forces to determine future policy, while leaving quite wide scope for determining what that policy should be.

On Guantanamo, the order states that “prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice.” It also says that “to the extent practicable” the disposition of the prisoners should be settled before the centre is closed in a year’s time.

To determine what should happen to the detainees, Obama ordered an immediate review of the status of each individual held at Guantanamo. According to his order, the review will first determine whether detainees can be transferred or released; in the case of those who can’t, the review will then evaluate whether they can be prosecuted, including before domestic US courts (but with the possibility left open that other judicial options could be considered).

Finally, the order says that, for any detainees whose cases aren’t disposed of by transfer, release or prosecution, the government “shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals.” Through this phrase, the government is leaving itself the flexibility to continue to detain al-Qaeda suspects as “enemy combatants” as long as US courts uphold the possibility of such detention.

Meanwhile, though another order, Obama set up a separate task force to review the whole subject of detention policy, to report within 180 days on the different options that the United States should consider “for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” This task force will presumably recommend whether a policy of detention should be continued for those detainees who cannot be prosecuted and whom the government cannot (or does not want to) transfer or release.

On interrogation, Obama also allowed himself some flexibility. Although requiring the CIA to limit itself for the moment to techniques approved by the Army Field Manual, he also set up a task force to review interrogation policies which would examine whether these techniques “provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies.”

However, Obama did set clear limits for any interrogation of detainees in armed conflict, by determining that the rules of Common Article 3 should apply as a baseline in all conflicts, and by scrapping the extraordinarily loose interpretation of Common Article 3 that Bush had issued in his Executive Order 13440 (which among other provisions declared the Article’s ban on humiliating and degrading treatment to forbid only “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency”).

Obama also ordered that the CIA “shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” And he stated that the Red Cross should be notified of, and given timely access to, any person detained by the United States in connection with an armed conflict.

Regarding the practice of rendition, Obama asked the interrogation task force to report on the practice of transferring individuals to other countries to make sure that it complied with the law and did not result in the torture or inhumane treatment of the individuals involved.

Finally, Obama issued a separate memorandum ordering a review into the case of Ali al-Marri, the only individual held as an enemy combatant in the United States, and his government asked the Supreme Court to issue a 30-day stay in its pending consideration of al-Marri’s case. The Supreme Court agreed to the request, meaning the government will now have until March 23 (instead of February 20) to decide what position it wants to take on al-Marri’s detention.

It is not clear what position the government will take in the habeas corpus cases from Guantanamo that are now being heard in federal courts, and which will presumably proceed while the task force on detention policy conducts its review.

Taken together, Obama’s initial moves represent a sweepingly comprehensive dismantling of the structure of President Bush’s “war on terror.” Much of the system that will replace it remains unclear. In particular, it remains uncertain how far the Obama administration intends to claim the right to detain al-Qaeda suspects as enemy fighters in an armed conflict. Obama clearly said in his inaugural speech that the United States was “at war against a far-reaching network of violence and hatred.”

It also remains unclear whether he will ultimately allow CIA officers to use interrogation techniques not listed in the Army Field Manual, and whether he will allow terrorist suspects to be tried before courts-martial or other tribunals.

It remains to be determined how far Obama will follow law-enforcement rules in fighting al-Qaeda, and how far he will claim military powers. But his initial moves signal unmistakeably that he will conduct the fight against terrorism in accordance with international law, and that he will follow an interpretation of international law that adheres to accepted international practice, rather than revising it unilaterally as the Bush administration did.

Related Links:

Executive Order — Review and disposition of individuals detained at the Guantanamo Bay Naval Base and closure of detention facilities
The White House
January 22, 2009

Executive Order — Review of detention policy pptions
The White House
January 22, 2009

Executive Order — Ensuring lawful interrogations
The White House
January 22, 2009

US: Steps to End Torture Set a New Course
Human Rights Watch
January 22, 2009

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