Five Years After Executive Order Ending “Enhanced Interrogations,” a Return to Torture is Still Possible
By Scott Roehm, Senior Policy Counsel, Rule of Law Program

Five years ago today, President Obama signed Executive Order 13491 (Ensuring Lawful Interrogations). His purpose was to promote the humane treatment of both detainees in U.S. custody and U.S. personnel who might be captured abroad, to improve the efficacy of interrogations, and to ensure that the U.S. respects domestic and international laws that prohibit torture and cruel, inhuman and degrading treatment (CIDT).  The Constitution Project’s Task Force on Detainee Treatment detailed the reforms that EO 13491 mandated:

[Executive Order 13491] ordered the CIA to close any detention facilities under its operational control “as expeditiously as possible,” and not to open any such future facilities. It prohibited officials from subjecting any detainee under effective U.S. control to any interrogation technique not listed in the current Army Field Manual on interrogation, Army Field Manual 2-22.3. Executive Order 13491 also re-affirmed the U.S. Supreme Court’s holding in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions provided the minimum standards for treatment of detainees in U.S. custody, while preventing the executive branch from relying on the Bush-era Office of Legal Counsel’s interpretations of Common Article 3 or the rest of the Geneva Conventions, the Convention Against Torture (CAT), and the federal criminal prohibitions on war crimes and torture. It required “all departments and agencies of the Federal Government [to] provide the International Committee of the Red Cross (ICRC) with notification of, and timely access to, any individual detained in any armed conflict.” Finally, the order established an interagency task force to examine interrogation and transfer policies, with representatives from the military, CIA, and the departments of Justice (DOJ), State (DOS), Defense (DOD), and Homeland Security (DHS).

Notwithstanding concerns (which the Task Force shares) that the Army Field Manual may leave the door open for certain inhumane interrogation practices, EO 13491 signaled a clean and necessary break with Bush-era detainee abuses.  But it’s not sufficient to prevent their return.

As our Detainee Task Force further explained, the same day President Obama signed EO 13491, ABC News and The Washington Post released the results of a poll that found 58% of those surveyed agreed that the United States should never use torture.  Only 40% said that there were cases where “the United States should consider torture against terrorism suspects.”  According to recent polling on these issues, 51% of respondents now support using “enhanced interrogation techniques” – a euphemism for what in many instances amounted to torture or CIDT – against suspected terrorists to seek information about terrorist activities.

In some ways it’s not surprising that public support for torture seems to have increased since Obama took office – debate around these issues is driven almost entirely by accounts of former CIA officials who claim that “enhanced interrogation” was necessary and saved lives, and popular fiction that fuels that narrative (e.g., movies like Zero Dark Thirty and the television show 24).  But it’s extremely worrisome.   Executive orders don’t bind future presidents, and there’s no guarantee that EO 13491 will survive the next administration or a future terrorist attack.

The best defense against a return to torture and CIDT is an informed public that won’t allow it.  That’s why our Detainee Task Force called for the declassification and release of the Senate Intelligence Committee’s 6,300-page study of the CIA’s post-9/11 detention and interrogation program (SSCI Report), and why TCP joined a coalition of groups that wrote a letter today to President Obama urging him to mark the five-year anniversary of EO 13491 by publicly supporting the SSCI Report’s release.

(As explained in an earlier post, the SSCI Report is a comprehensive examination of the CIA program based on a review of millions of classified documents, including “cable traffic, reports, memoranda, intelligence products, records of interviews conducted of CIA personnel by the CIA’s Office of the Inspector General and other CIA entities, as well as internal email and other communications.”)

“There are strong indications that the Committee’s study vindicates your Executive Order,” we wrote to the President, “and that the CIA repeatedly misled the Congress, the Justice Department and the White House about the torture program.”  Two of those indications bear emphasis.

First, after reviewing a section of the SSCI Report devoted specifically to representations the CIA made to the Justice Department about the interrogation program’s operation, former CIA General Counsel Stephen Preston and Caroline Krass (nominated to succeed him) both said that DOJ was not given complete and accurate information.  That’s a hugely important point given that Justice Department lawyers relied on CIA factual representations about how “enhanced interrogation techniques” would be implemented in determining their legality.

Second, Senators familiar with the SSCI report have repeatedly and loudly challenged the claim that torture and abuse were effective.  Senator Udall has stated flatly that the CIA program “did not work.”  It sounds as though the SSCI Report might shed light on a related question:  Is it possible to know whether, without “enhanced interrogation techniques”, interrogators could have acquired the same information the CIA claims it acquired from detainees by using those abusive methods?  Former agency officials say no.  Yet, as became clear during Stephen Preston’s confirmation process to become General Counsel at the Defense Department, “the Committee sought to confirm CIA representations that information the CIA claimed was derived from enhanced interrogation techniques was, as the CIA represented, otherwise unavailable to the U.S. government through other intelligence sources.”  If that analysis was done, the American public deserved to know the results.

Signing EO 13491 was an important first step toward getting the United States out of the torture business.  Releasing the SSCI report will help ensure that its safeguards endure over the long haul.



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