The Misinterpreter-in-Chief

By JOANNE MARINER

Monday, Jul. 23, 2007

Late last Friday, July 20, when even diehard policy wonks were probably thinking about the weekend, the White House issued an executive order regulating the CIA's secret prison program. It's an old trick used when the government wants to bury a story (known to some as "taking out the garbage"): make the announcement on a Friday afternoon. In this case the timing was understandable.

The new order purports to determine that the CIA's secret prison program "fully complies" with U.S. obligations under Common Article 3 of the Geneva Conventions, so long as the CIA follows a series of requirements in carrying out the program.

But even without John Yoo to write his legal opinions, President Bush still gets it wrong. The Geneva Conventions do not permit secret, incommunicado detention, and U.S. law makes no provision for the CIA to hold detainees.

"Reaffirming" the President's February 2002 Determination

The new order opens with a misstatement. It says that, in February 2002, the President determined that al Qaeda detainees were not entitled to prisoner of war status under the Geneva Conventions, and that the President is reaffirming that determination with the present order.

This short description rewrites history and leaves out a key intervening event: the Supreme Court's landmark 2006 ruling in the case of Hamdan v. Rumsfeld.

Back in February 2002, the President did not simply determine that al Qaeda suspects captured in Afghanistan had no right to prisoner of war status; what he said was that they were not protected by the Geneva Conventions at all. Those detainees, he asserted, had absolutely no legal claim to humane treatment: If the U.S. decided not to abuse them, it did so as a matter of policy. Unsurprisingly, this initial determination set the stage for much of the abusive treatment that followed.

President Bush hates to admit he could be wrong, but the fact is that the Supreme Court, in Hamdan, expressly rejected his position. Ruling that al Qaeda detainees could claim minimum Geneva Convention protections, the court struck down the president's jury-rigged system of military commissions.

Who Is the CIA Authorized to Detain?

The new executive order acknowledges, in a half-hearted way, the court-ordered notion that even terrorism suspects enjoy certain basic rights. While it entirely disregards the fact that secret, incommunicado detention itself contravenes the Geneva Conventions' rule that detainees be treated humanely, it does include four subsections purporting to regulate the CIA's use of such detention.

Three of the subsections restrict interrogation practices and conditions of confinement; the remaining subsection, in an important first, publicly defines the category of people who can be held.

The breadth of this category is appalling. It covers a wider group than either of the "enemy combatant" definitions used by the Administration on Guantanamo. A person could therefore fall outside of the category of people who could be held at Guantanamo or prosecuted in military commissions, but could nonetheless, according to this order, be held in secret, incommunicado CIA detention for years.

The new order authorizes the detention of any alien whom the CIA determines to be part of or "supporting" al Qaeda, the Taliban, or "associated organizations," if that person is believed to have useful info. (It's a two-pronged test, but the second prong, which I'm summarizing, imposes little practical constraints.)

Note the terms placed in quotes. The reference to support is far broader than that set out in the enemy combatant definition of the Military Commissions Act, which describes the jurisdiction of military commissions; the latter definition refers to persons who have "purposefully and materially supported hostilities" against the United States. And the order's reference to "associated organizations" is broader than the corresponding language used in deciding whether a person can be held at Guantanamo, since the latter definition refers to support for the Taliban or al Qaeda, "or associated forces that are engaged in hostilities against the United States or its coalition partners."

Notably, "associated organizations" (clearly a broader term than "associated forces," which connotes military groupings) might well cover suspect Muslim charities like the Al Rachid Trust.

Both prior "enemy combatant" definitions, while overbroad, at least include an explicit nexus to hostilities. The category outlined in the current order, in contrast, arguably covers people who give entirely innocent support -- possibly even ideological support -- to a wide variety of groups whose connection to violence may be attenuated. It all depends on how the language is interpreted, of course, but aggressive, bad faith legal interpretations have been a hallmark of this administration.

Interpretation and Misinterpretation

Under the Constitution and laws of the United States, the new order asserts, the president has the power to interpret the meaning and application of Common Article 3 of the Geneva Conventions. This much is true, but the power to interpret the law does not encompass the power to impose a misinterpretation by executive fiat.

Secret, incommunicado detention is illegal, both under U.S. and international law. By purporting to "determine" that the CIA's secret prison program is legal, the president does not make it legal; he simply confirms that responsibility for this illegal program lies with him.


Joanne Mariner is a human rights lawyer based in New York. Her previous columns on the treatment of "war on terror" detainees are contained in FindLaw's archive.

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