Sunday, February 8, 2009

Panetta's Answers

While Obama's selection of Leon Panetta for CIA Director was initially hailed by liberals as a rather impressive move, it appears that we all should've waited for Panetta's confirmation hearing to get too excited. The Panetta who wrote that "there is no middle ground" on torture issues said at his hearing “If we had a ticking bomb situation, and obviously, whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need.” The man who wrote "We are sworn to govern by the rule of law, not by brute force" trotted out the same tired BS used to make the US seem to have clean hands when it comes to renditions - from the LA Times:

"The agency no longer will send prisoners to its own secret detention
sites, which are being closed, Panetta said. But, 'there is a second kind of
rendition, where individuals are turned over to a country for purposes of
questioning,' he said. 'There were efforts by the CIA to seek and to receive
assurances that those individuals would not be mistreated.'
Panetta made clear that those renditions would continue, largely unchanged from Bush-era policies."

Panetta's willingness to waver on these issues - and commitment to asking for legal authorization of coercive interrogation if he wants to - is nothing like an end to torture. The Obama administration reserves the right to revert to the past. Panetta's wavering points us to structural problems in the process by which torture is authorized that make it difficult to end torture for good in the US.

The first issue, as I see it, is that the decision to torture rests with three people - the President, the D/CIA, and the AG. The process former AG Mukasey described in a letter to Sen. Leahy (read here) still exists. Obama's executive order does nothing to alter this -

"There is a defined process by which any new method is proposed for
authorization. That process would begin with the CIA Director's determination
that the addition of the technique was required for the program. Then, the
Attorney General would have to determine that the use of the technique is lawful
under the particular conditions and circumstances proposed. Finally, the
President would have to approve of the use of the technique as requested by the
CIA Director and as deemed lawful by the Attorney General."

And in fact reinforces it (from the Executive Order Ensuring Lawful Interrogations):

"(c) Interpretations of Common Article 3 and the Army Field
Manual. From this day forward, unless the Attorney General with
appropriate consultation provides further guidance
, officers,
employees, and other agents of the United States Government may, in conducting
interrogations, act in reliance upon Army Field Manual 2-22.3, but may
not, in conducting interrogations, rely upon any interpretation of the law
governing interrogation -- including interpretations of Federal criminal
laws, the Convention Against Torture, Common Article 3, Army Field
Manual 2-22.3, and its predecessor document, Army Field
Manual 34-52 -- issued by the Department of Justice between
September 11, 2001, and January 20, 2009." [emphasis supplied]

Three people in the US government can change torture policy, whenever they so choose. And our national lack of interest in prosecuting Bush shows those in power that they have nothing to fear if they do choose to torture. We will defend poorly written legal opinions - as Panetta did - as long as they come from the people in the right positions inside the halls of power.

Vesting three individuals with the power to abuse and torture detainees is not an effective end to torture. We must agitate for:

1. transparency. As a state Senator, Obama pushed for a law requiring all police interrogations to be videotaped. This would be a great device by which to ensure our operatives are in compliance with the law.

2. prosecutions. Sorry, my faith in "the rule of law" has been kind of busted over the past 8 years. The efforts people in the Obama administration have been making to legitimize Bush policy and Bush legal opinion give me little confidence in their commitment to the rule of law - for example, Panetta: “Those individuals operated pursuant to a legal opinion… [and they] ought not to be prosecuted or investigated, [since] they acted pursuant to the law as it was presented by the attorney general.” Protecting Bush legal opinions only makes me wonder if you are doing so to preserve that type of power for yourself, in the future. Investigations and prosecutions of our little band of torturers are necessary to dispel these doubts.

3. new process. I believe that a law must be passed in Congress providing for the use of the AFM, minus its coercive provisions and Appendix M, in all of our federal agencies. Executive orders - which can be reversed at will - are not sufficient. Let Congress pass a law dictating anti-torture interrogation policy - and when a President wants to go against it, they can have it out in the courts. The right wing isn't going anywhere - and I do not want to see them undo Obama's executive orders (nor do I want to see Obama undo his own orders) in 2012, or 2016. Whether we torture or not should not be a political question - D/CIA and AG are both political appointees, and the President is of course elected.

There is much, much more to be said about Panetta's confirmation hearing. Guantánamo has apparently gone to shit: see Invictus and TalkLeft. Who in the Obama administration is going to step up and enforce the executive orders? Because this:

"But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a 'critical list', according to Bradley."

Does not sound like this:

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all
circumstances be treated humanely and shall not be subjected to violence to life
and person (including murder of all kinds, mutilation, cruel treatment, and
torture), nor to outrages upon personal dignity (including humiliating
and degrading treatment), whenever such individuals are in the custody or
under the effective control of an officer, employee, or other agent of the
United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.

(Force-feeding detainees has also been described here, amongst other places).

There needs to be immediate action on the part of the Obama administration to investigate these allegations and prosecute those who continue to mishandle detainees. The conduct of the Joint Task Force at Guantánamo appears to be in flagrant violation of US law.

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