"Bush’s New Interrogation Order Contains Loophole: ‘Does Not Create Any Right Enforceable At Law’"
In October 2006, Bush signed the Military Commissions Act of 2006, which provided for the continuation of so-called CIA “black sites” for interrogating terrorism suspects and allowed evidence obtained through torture to be used against them. In its lengthy series on the Vice President, the Washington Post reported that the bill gave Cheney everything he wanted:
For all the apparent setbacks, close observers said, Cheney has preserved his top-priority tools in the “war on terror.” After a private meeting with Cheney, one of them said, Bush decided not to promise that there would be no more black sites — and seven months later, the White House acknowledged that secret detention had resumed.
The Military Commissions Act, passed by strong majorities of the Senate and House on Sept. 28 and 29, 2006, gave “the office of the vice president almost everything it wanted,” said [John] Yoo, who maintained his contact with [David] Addington after returning to a tenured position at Berkeley.
Today, the AP reports that President Bush has issued a new executive order “prohibiting cruel and inhuman treatment, humiliation or denigration of prisoners’ religious beliefs.” The order seems to be an effort to bring the administration’s interrogation regime closer to the requirements stipulated in the Geneva Convention.
The new order is intended to apply to CIA interrogators. “The White House declined to say whether the CIA currently has a detention and interrogation program, but said if it did, it must adhere to the guidelines outlined in the executive order.”
The new order does not appear to shut down the “black sites.” Moreover, the text of the executive order suggests that any CIA personnel or others who engage in violations of the new regime will not be subject to any repercussions.
Sec. 5. General Provisions. (a) Subject to subsection (b) of this section, this order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(b) Nothing in this order shall be construed to prevent or limit reliance upon this order in a civil, criminal, or administrative proceeding, or otherwise, by the Central Intelligence Agency or by any individual acting on behalf of the Central Intelligence Agency in connection with the program addressed in this order.
The Post reported that exempting “CIA case officers and other government employees from prosecution for past war crimes or torture” was a “technical provision [that] held great importance to Cheney and his allies.” So while the administration is saying that it will not torture, it appears to be turning a blind eye in the event that it happens.
UPDATE: Marty Lederman provides an interpretation: “[I]f a form of violence is not already prohibited by federal criminal law, and is not ‘comparable’ to the forms of violence prohibited by the War Crimes Act, the CIA is not prohibited from using it.”
UPDATE II: The Center for Constitutional Rights expresses concern over the legal loophole. Via Raw Story:
The Center for Constitutional Rights offered an additional warning about the text of the President’s order.
“In the past, the Bush administration has taken the position that even if some legal restrictions on interrogation methods applied, they were unenforceable in court,” the group’s press release said. “According to CCR attorneys, that problem exists with today’s Executive Order, as the last section states it does not create any rights or benefits that are enforceable in court — except for CIA officers defending themselves from charges of abuse.”