Yesterday was the five-year anniversary of President Obama’s Executive Order 13491 on ensuring lawful interrogations. The Order, one of the first acts of the Obama administration, initiated several important changes to U.S. law and policy on interrogations. It established Common Article 3 of the Geneva Conventions as the baseline legal standard for detainee treatment. In doing so, it prohibited torture and all forms of cruel, humiliating, and degrading treatment. It also made clear that the ICRC should be given access to detainees held by the United States in connection with an armed conflict. The Order also prohibited the use of any interrogation technique or approach not approved by Army Field Manual 2-22.3—proving an additional institutional check to ensure that all detainees would be treated in a manner consistent with the principles of the Geneva Conventions. Although the Order plainly recognized the problem of detainees transferred to face torture and other forms of ill treatment at the hands of other states, it did not chart a clear course for U.S. policy regarding these renditions. To be sure, these were terrifically important steps toward establishing a clear legal framework for detention, interrogation, and detainee transfer consistent with domestic and international law.
The Order did not, however, work out the (arguably more important) details of interrogation and transfer policy. Instead, the Order established the Special Interagency Task Force on Interrogations and Transfer Policies to study and evaluate U.S. policies and to make specific recommendations. The Task Force included several high ranking administration officials: the Attorney General, the Director of National Intelligence, the Secretary of Defense, and the Director of the Central Intelligence Agency. In August 2009, the Task Force submitted its recommendations to the President. The specific recommendations and the accompanying report have not been made public—despite the remarkable fact that the document has been labeled “sensitive but unclassified” (SBU). As a consequence, virtually nothing is known about the specifics of U.S. policy—or the specific legal views embraced by the U.S.—in these contexts. It’s time to release the report so that meaningful, informed public scrutiny of U.S. policy is possible.