As he promised during the campaign, President Obama has signed an executive order directing the closure of the detention facilities at Guantanamo Bay within a year. This is clearly an offering to his leftist base of supporters, who will be immensely grateful. It's also a move that has been well received at the United Nations, where UN High Commissioner for Human Rights Navi Pillay described Obama’s action as representing a good day for the rule of law.
As it happens, Obama signed the order on the same day it was reported that a Saudi-born Guantanamo terror detainee named Said Ali al-Shihri, who had been released and sent back to Saudi Arabia to enroll in a Saudi "rehabilitation program" for former jihadists, has returned to his old terrorist ways instead. That should be no surprise, naturally, in the incubator of terrorism that is Saudi Arabia.
Al-Shihri left Saudi Arabia and resurfaced in Yemen where he has been restored to a prominent position in terrorist circles. He is now an al-Qaeda commander in Yemen, which is re-emerging as a terrorist safe-haven. Last September, he proved his terrorist mettle with his involvement in a car bombing outside the American embassy, killing 16 people.
Al-Shihri is not the only Guantanamo alumnus who has resumed terrorist activities. The Pentagon believes that dozens of former Guantanamo detainees have “returned to the fight” against America.
There are 245 prisoners still being held at Guantanamo. Obama is embarked on a course that will either release them or try them under the full constitutional protections afforded criminal defendants in American courts. What is to be done with dangerous captives who cannot be brought to trial for risk of revealing intelligence secrets or because evidence against them was elicited under coercive interrogation techniques? Some may be released on legal technicalities and if no other country agrees to take them, possibly permitted to remain in the United States, where they will be able to set up sleeper al-Qaeda cells on our soil.
Apparently, it is now more important to make sure that foreign terrorist suspects enjoy all of the rights guaranteed to the American people by our Constitution than it is to ensure to the American people the security in their lives, liberties, and property that the Constitution lays down as a primary obligation of the federal government.
And if the United Nations has its way, the former captives may even be awarded damages for their ‘pain and suffering’ while they were detained. UN torture investigator Manfred Nowak has claimed, for example, that inmates eventually freed from Guantanamo should be entitled to sue the United States if they have been "mistreated" according to his notion of what constitutes torture or other forms of cruel, inhumane, or degrading punishment.
President Obama has kept another of his campaign promises by signing an executive order making the Army Field Manual govern interrogation techniques for all United States Government personnel including the CIA. While leaving the door slightly ajar for very limited undefined exceptions, the enhanced interrogation techniques that have helped keep us safe since 9/11 are a thing of the past.
According to the outgoing director of national intelligence, Admiral Michael McConnell, the intelligence community needs interrogation techniques beyond what are contained in the Army Field Manual. They will not get such flexibility under the new executive order, however, which also prohibits the CIA from holding prisoners in third countries.
The Army Field Manual for Human Intelligence Collector Operations is a publicly available document posted on the internet. It provides the terrorists with a roadmap as to how they are likely to be interrogated and the expected psychological outcomes. Some portions resemble a psychology textbook. With a bit of role-playing as part of their training, hardened terrorists will have little problem in learning how to manipulate their interrogators.
Obama’s primary mistake is to virtually remove the element of surprise from future interrogations. Keeping the enemy guessing on what we may or may not do and how we do it is essential in the kind of asymmetric war we are fighting with the terrorists, who capitalize on their own use of surprise. Acting in calculated, predictable steps within a set of publicly available rules that signal exactly what the terrorist suspects can expect while in detention removes any incentive on their part to cooperate.
The toughest sanction in the Army Field Manual is the limited separation of an unlawful enemy combatant from his fellow detainees, which requires higher levels of approval before it can be imposed. It will have little effect on terrorists trained to handle such conditions.
Separation of enemy combatants can mean solitary confinement. It may also include psychological feelings of isolation and loss of a sense of control brought on by perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the use of sensory overload, temperature or environmental manipulation.
However, the Army Field Manual prohibits the use of "excessive noise"; "excessive dampness"; or "excessive or inadequate heat, light or ventilation." And the manual bans any program of sleep deprivation that does not permit a detainee at least four hours of sleep a night. Just to put this into perspective, consider how many college students regularly get less than four hours a night of sleep.
The manual does permit some detainees to be blind-folded and to be given earmuffs for up to 12 hours at a time under medical supervision when physical isolation is not feasible.
These measures are about as bad as it gets for the terrorist suspects under the Army Field Manual. They are a snap to prepare for during terrorist training sessions.
Everything that is permitted and prohibited is spelled out in great detail. There are no potential surprises.
The Army Field Manual states that "all prisoners and detainees, regardless of status, will be treated humanely. Cruel, inhuman and degrading treatment is prohibited. The Detainee Treatment Act of 2005 defines ‘cruel, inhuman or degrading treatment’ as the cruel unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This definition refers to an extensive body of law developed by the courts of the United States to determine when, under various circumstances, treatment of individuals would be inconsistent with American constitutional standards related to concepts of dignity, civilization, humanity, decency and fundamental fairness."
Under the Army Field Manual’s application of this sweeping prohibition, interrogators cannot even mock the passages in the Koran that serve as the basis for the most dangerous jihadists’ fanatical beliefs, much less deprive these captives of their incendiary religious tracts altogether.
Yet UN officials such as its torture investigator Manfred Nowak are not satisfied. He believes, for example, "[W]hen isolation regimes are intentionally used to apply psychological pressure on detainees, such practices become coercive and should be absolutely prohibited." Since Nowak thinks that virtually all instances of detainee isolation constitute mistreatment, he will assert that detainees subjected to isolation under the Army Field Manual’s interrogation methods must be compensated for any supposed "psychological damage."
Terrorist rights groups such as the National Lawyers Guild and the ACLU are of the same mindset as Nowak. They believe that the Army Field Manual’s interrogation methods, even those governing the carefully controlled use of isolation and requiring that the use of sleep deprivation last for no more than 20 hours a day during any 30 day period, constitute cruel and unusual punishment. These misguided leftists are more concerned about the psychological welfare and comfort level of their terrorist suspect clients, whom they fear will become depressed, irritable and disoriented, than they are about the lives of their fellow citizens. Claiming that such treatment is inhumane and therefore illegal under the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights, the advocates for terrorist suspects threaten to go to court on behalf of their clients whom they believe should be treated as conventional prisoners of war with full constitutional and Geneva Convention protections.
The Geneva Conventions do require that "[P]risoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." (Emphasis added.) A prisoner of war would have to be treated as if he or she were in the U.S. military, with the same living conditions as our own military forces.
The Army Field Manual follows this protocol for detainees who actually qualify as prisoners of war. Detainees eligible for POW status are provided with privileges and procedural protections that go beyond the baseline prohibition of cruel, inhuman and degrading treatment that extends to all detainees including unlawful enemy combatants. However, it is simply laughable to think that denial of POW status as so defined under the Geneva Conventions to terrorist suspects can equate to torture or any other form of truly inhumane treatment. On the contrary, it means only denying special privileges and procedural protections to individuals who refuse to abide by even the most minimal set of civilized norms and laws of war, not to mention the same norms set forth in the Geneva Conventions themselves. Al Qaeda and other Islamic fanatical terrorists come nowhere close to qualifying for POW status and the advantages that come with it.
As a rational society, we should be able to agree that being "exposed to unpleasant or disadvantageous treatment of any kind" in the course of an interrogation is not torture or otherwise inhumane treatment but rather a reasonable if unpleasant burden imposed on foreign terrorist suspects caught in connection with hostilities aimed against the United States and who may have valuable information on more planned attacks. The Army Field Manual already gives them far more sanctuary than they are worth by prohibiting interrogators from using the kind of physical and mental stress that is everyday practice in boot camp for our own soldiers.
President Obama has said that he signed the executive orders closing Guantanamo and ending the use of enhanced interrogation methods to demonstrate to the world that the United States will not sacrifice its core democratic values in order to achieve national security. In fact, he is on a path toward sacrificing both. In his desire to please his political base and opinion-makers at the United Nations and other elite forums, Obama may unfortunately be giving our mortal enemies the tools to undermine our democratic values and to continue their hostilities against us with renewed strength.