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George Hunsinger is the McCord Professor of Theology at Princeton Theological Seminary. He is the founder of the National Religious Campaign Against Torture. Among his recent books is Torture Is a Moral Issue: Christians, Jews, Muslims and People of Conscience Speak Out (Eerdmans, 2008).
The Executive Orders by President Obama on January 22 — to close Guantanamo, to end harsh interrogations, and to abolish secret prisons — represent a huge step forward and are truly cause for rejoicing. They go a long way toward putting an end to the lawlessness of the past and to restoring our country to decency. Torture is not just one issue among others. It is archetypal. It poses a fundamental threat to constitutional government and the rule of law. Regimes that authorize torture send a terrifying message that they operate in a law-free zone. (High-ranking officials from the outgoing administration openly acknowledged before they left that a policy of torture had been implemented in the so-called war on terror.)
Nevertheless, although the new Executive Orders are encouraging, they still leave room for concern. The decision to shut down Guantanamo is most welcome, yet it is not only lacking in detail but also allows too much time for its implementation. Guantanamo should be closed in less than a year. The many men who can go home should be immediately repatriated. Safe havens must be found for the others who would face torture or persecution if sent back. A handful will need to be tried in domestic courts.
Closing the CIA black sites is also enormously important. Secret prisons have no place in a democratic society. Their only purpose is to get around the Geneva conventions and other laws so that torture and abuse can be carried out. No option should be left open for reviving those sites. Establishing a single standard for interrogation, also promulgated in principle, is essential if torture is to be flushed out of our system. One of the executive orders proposes to do this on the basis of the Army Field Manual. Nevertheless, serious ambiguities remain. First, a disturbing loophole is left by establishing a Task Force mandated to review this single standard in order determine whether exceptions should still be made for the CIA.
Second, the Field Manual itself contains a notorious “Appendix M” in which interrogation techniques are permitted that would qualify as “cruel, inhuman and degrading treatment” under the Geneva conventions. Future efforts must be aimed either at eliminating this Appendix or simply letting the Geneva conventions stand as the sole standard to which all US interrogations, whether by military or intelligence agencies, must conform.
Finally, it is noteworthy that no explicit mention was made of extraordinary rendition, a policy that needs to be firmly disavowed. Rendition has been the practice of apprehending suspects and sending them to countries where it is known that they will be tortured and abused. The US needs to apologize for this horrendous practice and to offer reparations, especially in those cases where it has been shown that the suspect was actually innocent (as Canada did for Maher Arar). While the tone of the president’s remarks at the signing was heartening, his silence on rendition left a glaring hole.
Strong pressures, both openly and behind the scenes, to circumvent these new measures at their best are to be expected. They will come from right-wing sources and agencies like the CIA. For the past 50 years, the history of US involvement in torture has been the history of loopholes for the CIA.
In short, the new executive orders are full of promise, They overturn illegal and immoral tactics in the defense of national security. But they do not mean that the struggle is over.