Rollback on Torture? Not So Easy for Obama

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Chip Somodevilla / Getty

Ankle cuffs are used to restrain prisoners at the detention facility at the U.S. Naval Station in Guantanamo Bay, Cuba.

Barack Obama won the White House with a firm promise to put an end to what critics called the Bush Administration's use of torture on terror suspects. But as the President-elect prepares to take office, his team is quickly learning that even on such a seemingly black-and-white issue, effecting change in Washington is never as simple as it sounds on the campaign trail.

From the earliest days of his quest for the presidency, Obama said that he would eliminate the CIA's controversial power to employ secret, harsher methods in the interrogations of detainees. "As President, I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors," he told the Boston Globe, in a December 2007 interview. (See a Who's Who of Obama's cabinet here.)

That military manual specifically bars the Army from using techniques that were approved in recent years by President Bush and his deputies, including waterboarding, intimidation by military dogs, the hooding of detainees and sexual humiliation. The manual approves 16 other interrogation techniques, focused mainly on non-coercive psychological manipulation.

For much of the past year, most Democratic lawmakers have supported Obama's plan. But with Obama's election, two key Democrats on the Senate Intelligence Committee have begun to entertain the possibility of another solution: Developing a new government-wide policy different from the field manual to regulate interrogation techniques, a plan that appears to be drawing support within the intelligence community but some concern from human rights groups.

California Sen. Dianne Feinstein, who is set to chair the Senate Intelligence Committee, said this week that while she still supports using the Army Field Manual for the entire government, she was willing to consider other options. "I recognize there are other views, and I am willing to work with the new Administration to consider them," she said in a statement. She added that she expects "a single, clear standard for interrogation across the federal government" and that the standard would have to comply with "all laws and treaties." Feinstein says she plans to reintroduce her bill to require a government-wide use of the field manual early next year. To read more on the issue, click here.

Oregon Sen. Ron Wyden, another Democrat on the Intelligence Committee, told the New York Times this week that he was open to discussing CIA techniques not included in the Army manual, as long as they were "legal, humane and noncoercive." "Just because the Army Field Manual is the best available manual, doesn't mean we can't do better," explained Jennifer Hoelzer, a spokesman for Wyden.

Under current law and policy, the CIA has a secret list of approved interrogation techniques distinct from the Army manual. But at the same time, the agency is prohibited by law from using techniques that are "cruel, inhuman or degrading." In recent years, the Bush Administration has interpreted those terms as permitting techniques like "waterboarding", an approach that is widely considered torture, in which detainees experience simulated drowning. The CIA has since said that it has suspended the use of this particular technique, though earlier this year Bush vetoed a bill requiring the CIA to operate under the field manual, and Democrats lacked the votes to override. In any case the Bush legal interpretations are certain to be abolished under the Obama administration, say experts involved in these discussions.

The possibility of departing from the field manual standard comes at a critical time. Senior members of Obama's transition staff, including future White House counsel Greg Craig, Attorney General nominee Eric Holder and Democratic Senate staffer Mary DeRosa, have been holding wide-ranging meetings to gather opinions about interrogation policy. Obama does not require Congress's approval to pull back on Bush's current interrogation policies, and an executive order reversing them could be released as early as next January.

On Wednesday, the three officials met in Craig's downtown Washington law office with more than a dozen retired generals and admirals who advocate abolishing any interrogation method that employs tactics that the U.S. would not want used by an enemy on American citizens, a principle known as the "Golden Rule." Several members of the group said they would be open to developing a new government-wide standard, as long as it only permitted techniques similar to those allowed in the field manual. "I think the field manual is fine, but I understand agency jealousies," said retired Admiral John Hutson, who is a member of the group. "What I am bound to is a single standard, and that that standard be the golden rule."

Caroline Fredrickson, the legislative director of the ACLU, said that she and other civil liberties advocates plan to meet with the President-elect's transition team soon. "We are very concerned about something that would go in a different direction" from the field manual, she said. "But I think Sen. Obama has been very clear about what direction he is going in."

Some advisers have been less clear. John Brennan, a former CIA official who has counseled Obama on intelligence matters, said in August that the use of the field manual was an open question. "Whether the Army Field Manual is comprehensive enough to cover all those tactics and techniques, that's something I think he'd look to his national security advisers for," said Brennan in an August interview with Congressional Quarterly. Last week Brennan withdrew his name from consideration for the top job at the CIA, after an outcry of protest from Obama's liberal supporters. Though he worked at the CIA early in the Bush Administration, Brennan has long maintained that he objected to the harshest interrogation policies pushed by the White House.

Other outside experts in interrogation law have pointed to the considerable gap between what is permitted under the field manual and what is allowed by a reasonable interpretation of laws and treaties. For example, the field manual prohibits a number of psychological ploys, like "threatening to separate parents from children" and "implying harm to the individual or his property," which might otherwise be allowed under the law in certain circumstances.

Benjamin Wittes, a Brookings scholar of legal standards in the war on terror, said that new President would be wise to maintain some leeway beyond the Army document. "The right answer here is not for the executive branch to have zero latitude in the highest stakes interrogations," Wittes said. "And you don't have to be Dick Cheney to believe that." In the past, members of the intelligence community have also argued for keeping some approved methods of interrogation classified, so as not to tip off enemies to what they might possibly face in the future.

The final outcome of the President's interrogation plan is still under development, as is any legislative push by Democrats in Congress next year. Both Wyden and Feinstein say they are considering new legislation to codify the restrictions on presidential power when it comes to interrogation, an effort that President Bush repeatedly resisted. "No one here thinks that President Obama is going to commit any abuse of prisoners," said Hoelzer, the Wyden spokeswoman. But she added that there was much less confidence in the priorities of those Presidents who might follow Obama into the office.

Defending Gitmo Detainees

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