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Obama order on Guantanamo and torture

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network, coming to you from the McClatchy newspaper offices in Washington, DC. We’re now joined by Michael Ratner, who’s the head of the Center for Constitutional Rights, and he comes to us from New York. Thanks for joining us, Michael.


JAY: So President Obama announced the closing of Guantanamo. He dealt with the issue of use of torture and interrogation and some other important announcements. Did he meet your hopes and expectations on this?

RATNER: You know, we had pretty severe expectations, pretty strong ones, but he came close, and I think we’re just going to have to see over the next period. Look it, on his first full day in office, he signed some remarkable executive orders. The first one, and the one that you mentioned, is the one to close Guantanamo within one year.


BARACK OBAMA, US PRESIDENT: In order to effect the appropriate disposition of individuals currently detained by the Department of Defense at Guantanamo and promptly to close the detention facility at Guantanamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order it. And we then provide the process whereby Guantanamo will be closed no later than one year from now.


RATNER: Now, we at the Center put out a report to close Guantanamo within three months, so we’re a bit disappointed in the sense that we think that’s too long, because some people have been there seven years, we don’t think they ought to be there eight years, and we think he could have moved faster. But that’s the outside limit, so it’s conceivable that many, many people will be released or repatriated in the next number of months. Now, in our report we said that there were essentially two baskets where people could fit: people could be either prosecuted, or they could be repatriated to their home countries or a country that could accept them and not torture them. Those are the two baskets. Obama went pretty far on saying those are the two baskets he’s going to use. Two baskets. Unfortunately, the executive order allows for the possibility of a third basket, and that’s for people who might not be able to be tried, according to the government, or might not be able to be repatriated and are too dangerous to release. That would be, essentially, a preventive detention scheme, in which people are not charged but are held in prison perpetually without any criminal trial.

JAY: So does that give us Guantanamo without Guantanamo?

RATNER: That gives you what I would call a repackaged Guantanamo for some number of the Guantanamo detainees, or for some going forward in the future. Now, we don’t know if that’s going to happen, we don’t know how they’re going to come out after they look at the 245 people left there, we don’t know how the special commission set up to look at how to treat people in the future is going to come out, but it is a hole. On the other hand, we have to celebrate the fact that a president finally said, “Close this offshore penal system down.” What we don’t want, obviously, is a repackaged Guantanamo with some kind of a legal gloss on it. So that’s one hole. The second hole is the type of trial the few people who are put on trial will get. I don’t know whether it’ll be 10 people; I don’t know if 15; I don’t know whether it’ll be 6. Right now, the order really says, the executive order, that they have to be tried in a federal criminal court or, conceivably, at courts martial, but really a system that’s already established. Like there is with the preventive detention hole, there is some loose language in there saying some people may have to be tried in some other form, and that would be back to a military commission, although one with more rights than the Bush commissions. I think that’s very unlikely. I think they just put it in there to have that sort of option if it was 100 percent necessary. I don’t believe he’ll do that. That’s going back to, really, not just a repackaged Guantanamo but a repackaged military commission. Very unlikely. So we’re basically happy with it, but our view was on those two key issues—preventive detention, trials outside of a federal court system—those are issues we have to make sure that we keep Obama on the same page as he should be, to really obey fundamental human rights.

JAY: And he made some other announcements.

RATNER: Yes, he had some other announcements of other signings. The second big one—and it’s a big one—is on interrogation and secret sites.


OBAMA: Any interrogations taking place are going to abide by the Army Field Manual. We believe that the Army Field Manual reflects the best judgment of our military, that we can abide by a rule that says, “We don’t torture,” but that we can still effectively obtain the intelligence that we need.


RATNER: A second executive order was signed, and that one ended secret sites by the CIA, these secret interrogation centers that had been set up from Poland to Morocco to Thailand and other places. He said no more secret sites by the CIA, either now or in the future. That’s quite strong. And the second thing he did, he took the interrogation techniques that currently apply in the military (they’re called the Army Field Manual techniques) and he said no more wiggle room on this. Those now apply across the board to every single US agency, including the CIA. So, as we speak, secret sites should be closing down. That’s where they torture people; took them away. And interrogation techniques are only those authorized by the Army Field Manual.

JAY: Now, is there any way that there’s accountability? Who is going to say that this is actually being implemented?

RATNER: You know, that’s a good question. Obviously, just as we didn’t know during the pre-Bush years, we didn’t know what the CIA was doing in some of its secret places. And so there’s no way, really, to get complete accountability on that. Your hope is that they’re going to listen to Obama, that they’re not going to set up some kind of secret program. We have good reporters who do nothing but snoop around on these issues, and hopefully it would come out if they actually tried to do that, or that one of the people who was taken to one of those sites would surface. So I suspect that for now, at least, it’s going to be put to rest. But, you know, the CIA has a life of its own, and it’s done a lot of nasty stuff in the back. [inaudible]

JAY: [inaudible] his other major announcements?

RATNER: Well, I want to go back to [inaudible] so we have the Guantanamoan interrogation. Now, on interrogation, of course, there’s some wiggle room again, just as there was with Guantanamo. He does set up a special commission to look at whether the CIA will need more interrogation techniques or whether he’ll have any use for the secret sites. Now, you don’t know whether he’s really doing that just as a salve to the CIA to get him off his back or that he really might come up with the idea that the CIA needs more interrogation techniques. The CIA was complaining bitterly about this. None of them were present at the signing of the executive orders. So I don’t know what’s going on, but again you have to watch it. So those are two really major orders, closing Guantanamo, closing secret sites, and changing the interrogation techniques to comply with the Army Field Manual. He also had some other things. It was quite a big day. An area that we explore constantly in the United States is our freedom of information law, and we get all kinds of information on everything from the environment to torture to everything else. Ashcroft, who was attorney general first under Bush, had issued an order saying that agencies should presume that documents are not discoverable and puts the burden on the person making a request to prove that they were not state secrets or something like that or confidential. Obama reversed that presumption, got rid of that executive order on freedom of information, and said the presumption now is the documents ought to be released. That’s going to make a big difference in how we find out about torture and who is responsible.

JAY: So that’s quite significant.

RATNER: [inaudible] major.

JAY: Just quickly and finally, the issue of the prosecution of Bush and Cheney. The Obama argument is we’re fixing it for the future, there’s no need to look back, even though, as we discussed in one of our earlier interviews, both now President Bush and Cheney admitted on national television to authorizing waterboarding, which seems now clearly recognized by the Obama administration as torture and, thus, illegal. What do you make of this argument that we’ll just fix it so it can’t happen again, there’s no need to go after him?

RATNER: You know, the best refutation, Paul, of that argument is the picture of Obama signing these executive orders ending torture, ending Guantanamo, because if Obama can sign them, all you have to ask yourself: the next president after Obama can simply sign a different set of executive orders. And the question is: Should our adherence to fundamental human rights, to the prohibition on torture, be dependent, essentially, on the length of the president’s arm? Or should it be enshrined in law? And the only way to get it enshrined in law is to prosecute the people who engaged in torture and were the architects of the torture program, ’cause that’s the only way that the next president, or the one after that, or even this one, at some point won’t say, “Well, I think we ought to go back to ‘the dark side,’” as Cheney said. So if there’s any, really, poster for the fact that we need the deterrence of prosecution, it’s from the fact that Obama, with simply the stroke of a pen, could get us off the page of torture just means the next president can put us on the page of torture.

JAY: Thanks very much for joining us, Michael. And thank you for joining us.

RATNER: Thanks for having me, Paul.

JAY: Thank you for joining us on The Real News Network.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.