Has Barack Obama retreated on his promise to end the Bush administration’s lawless and sometimes cruel treatment of suspected terrorists? By no means, but some of his actions -- and comments from some of his key appointees -- are sending a mixed message.
First, the encouraging news: Unlike their predecessors, Atty. Gen. Eric H. Holder Jr. and CIA Director Leon E. Panetta have said that waterboarding is torture. President Bush mused that it would be nice to shut down the Guantanamo Bay detention center; President Obama has ordered that it be closed within a year. The Bush administration transported suspects to other countries to be interrogated by the CIA at secret prisons; the new administration will close such “black sites.” The Bush administration allowed the CIA to use harsh interrogation tactics off-limits to the military; Obama has abandoned that policy. The president’s promises of change, however, come with equivocating asterisks, most recently an acceptance of the Bush administration’s use of the “state secrets” doctrine to thwart a lawsuit over alleged torture as part of the CIA’s so-called extraordinary rendition program.
It was widely assumed that under Obama, extraordinary renditions would be out of bounds. Yet an administration official told The Times’ Greg Miller that if rendition is done “within certain parameters, it is an acceptable practice.” At his confirmation hearings, Panetta promised that rendition to CIA prisons “will not take place because black sites will no longer exist.” But Obama’s order permits the agency to maintain “facilities used only to hold people on a short-term, transitory basis.” This language must not become a loophole for abusive interrogations. As for renditions to foreign countries, Panetta said the administration will seek assurances that detainees “will not be treated inhumanely.” But the Bush administration said it asked for the same assurances, apparently to little effect.
Under Obama’s order, the CIA is now abiding bythe Army Field Manual, which rules out interrogation tactics such as sexual humiliation, mock executions, the use of attack dogs and the withholding of food and medical care. But Obama also has convened a task force to determine whether requiring agencies outside the military to follow the manual is appropriate to “protect the nation.” That raises the possibility of a retreat from a single standard of interrogation.
The administration’s opposition to torture also was clouded by a comment from Panetta in response to the hoary scenario in which a terrorist in custody is known to have information about an imminent attack. “If we had a ticking-bomb situation and obviously whatever was being used I felt was not sufficient,” Panetta said, “I would not hesitate to go to the president of the United States and request whatever additional authority I would need.” Panetta added that Obama would not violate any laws; but in this hypothetical situation, the CIA presumably would have been doing the maximum allowed by law. So why concede the need for harsher measures?
Finally, Obama rightly has suspended trials by military commissions at Guantanamo, pending a study of whether detainees accused of war crimes should be tried by civilian courts or by a revised commission system. Civilian courts have proved that they can effectively handle terrorism prosecutions, while even a retooled commission system would lack credibility. Affording due process to detainees accused of committing crimes in the past can be accomplished without releasing those considered to be dangerous in the future -- an option reserved by the Obama administration. But even “high-value” terrorists are entitled to have their status determined by a thorough, adversary process.
In this area as in others, Obama must adapt some of his campaign rhetoric to the realities of government. But Obama the candidate was right about the Bush administration’s disastrous anti-terror policies. Obama the president must be careful not to revive them.