Friday, July 20, 2007

Bush and Torture: "Trust Us"

President Bush today signed a long-awaited Executive Order that seeks to clarify which methods of interrogation are banned by Common Article 3 of the Geneva Conventions. Here is the key section of the new guidance:

I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3 [of the Geneva Conventions], provided that:

(i) the conditions of confinement and interrogation practices of the program do not include:

(A) torture, as defined in section 2340 of title 18, United States Code;

(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;

(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;

(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 §366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 §148 and section 1403 of Public Law 109 §163);

(E) 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, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual.

While the prohibitions listed are important, especially in light of the fact that many of them have not been observed in the past, it is worth noting that the Executive Order defines the exclusions of Common Article 3 in terms of other legal guidance that also has not been observed in the past by the Bush Administration. President Bush is, in other words, continuing to kickthe can down the road.

So what is now off-limits? Practices banned by the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the statute implementing the Convention (Section 2340 of Title 18) are banned by this Executive Order. So are practices that were banned by the Detainee Treatment Act of 2005. And practices that were prohibited by the Military Commissions Act. And so on. But we knew this already. And we also knew already that America's torture problem was the way the Bush Administration was interpreting--or simply ignoring--these rules.

After all the bureaucratic warfare that allegedly occurred over this Executive Order, the only significant guidance that has emerged from it is this: "The Director of the Central Intelligence Agency shall issue written policies to govern the program" of interrogation.

Those written policies will, of course, be secret.