It’s really tough sorting out the new Executive Order on torture. But after a whole day of pondering the details, I think I’m finally getting it. It’s yet another Bush signing statement, this time to record his own personal interpretation of the Geneva Convention. After all–that’s where this new EO came from: after SCOTUS, in Hamdan, told Bush that all detainees were covered by the Geneva Convention, after Congress, with the Military Commissions Act, told Bush he could shred concepts like habeas corpus but only if he had documentation for doing so, he was forced to write this new EO.
Charlie Savage provides a good overview:
Bush’s executive order laid out broad guidelines for how the CIAmust treat detainees in its secret overseas prisons, where theadministration has held some suspects without giving them access to theRed Cross. The document prohibits a range of abuses, including"intentionally causing serious bodily injury" and "forcing theindividual to perform sexual acts," as well as mistreating the Koran.
Theorder also said the CIA director must personally approve the use ofextraordinary interrogation practices against any specific detainee.Detainees must also receive "adequate food and water, shelter from theelements, necessary clothing, protection from extremes of heat andcold, and essential medical care," it said.
But most of thepresident’s executive order is written in generalities, leavingunanswered whether the CIA will be free to subject prisoners to a rangeof specific techniques it has reportedly used in the past, includinglong-term sleep disruption, prolonged shackling in painful stresspositions, or "waterboarding," a technique that produces the sensationof drowning.
That is, some of the most obvious abuses–using sex and religion–are now forbidden. But the key information, what remains permitted, is in a separate, classified list that we don’t get to see. And three other key details: the Executive Order explicitly denies any legal responsibilities associated with the EO, so even if some overzealous torturer ignores it, he’s not going to jail. The Red Cross remains unable to monitor prisoners in this newfangled "enhanced interrogation" program. And Congress still doesn’t have a copy of the DOJ opinion on the program. For that matter, Karen DeYoung reports that the Administration hasn’t responded to Congress’ other questions, either.
They said the administration has not responded to the questions theyasked during a recent briefing on the new order and the detaineeprogram.
Mind you, this is the DOJ review that Congress mandated as part of the Military Commissions Act. But I guess that’s classified too.