* Today’s executive orders on GTMO, CIA detention and interrogation, and the Al-Marri case
Attached are copies of the four new executive orders. A brief overview of each follows below. The long and short of it is that a variation of the NSC principals’ committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri’s status before it must file a merits brief in that case.
This order appears to track the draft version about which I posted earlier. Please see that earlier post. Short version: all the expected options are to be used to effect closure in 1 year.
Another order establishes a task force to hash out detention policy not just re GTMO, but more generally for persons “captured or apprehended in connection with armed conflicts and counterterrorism operations.”
The Task Force members are the AG, SecDef, SecState, SecHomeland, DNI, D-CIA, CJCS, and whomever else the SG and SecDef jointly might add. The AG and SecDef in turn may designate personnel from their departments to function as support staff, and they may request staff from other agencies as well. One person will be the Executive Secretary of the Task Force.
The Task Force will generate its report in 6 months (unless an extension is sought), and there shall be preliminary reports in the meantime.
Section 1 revokes EO 13,440 (July 20, 2007), which had addressed the meaning of Common Article 3 as applied to the CIA, among other things. Section 1 also revokes all orders or regulations inconsistent with this new order, and directs department and agency heads to ensure compliance (and to seek DOJ guidance in case of uncertainty).
Section 3, the title of which states that Common Article 3 provides a “minimum baseline,” specifies that any persons detained in any armed conflict shall be treated humanely, not subjected to violence to life and person or to outrages upon personal dignity, whenever in US custody, the effective custody of the US, or a US-controlled facility. No such person shall be subjected to a technique not authorized or listed in Army Field Manual 2-22.3. This section expressly forbids reliance upon legal advice relating to interrogation rendered by DOJ between 9/11/01 and 1/20/09.
Section 4 (i) directs CIA to shut down its detention facilities, if any remain, as fast as possible, and not to operate any such facilities in the future; (ii) requires timely notice to the ICRC for any person the U.S. may detain in any armed conflict
Section 5 creates a “Special Interagency Task Force on Interrogation and Transfer Policie,” consisting of the AG, the DNI, the SecDef, the SecState, SecHomeland, D-CIA, CJCS, and others to be appointed by the Chair. Their task “shall be: (i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2‑22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and (ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.” Logistically, the setup is much the same as the detainee policy task force, with the same deadlines.
Ali Al-Marri, the sole enemy combatant detained in the U.S. itself, is not within the bounds of the GTMO closure order above. This order directs the same officers to determine the best disposition of his situation. SCOTUSblog notes that Al-Marri has agreed to a government request to delay the government’s brief for 30-days beyond the current late February deadline.