Commentary Magazine


Really Not Changey At All

When Attorney General nominee Eric Holder testifies that he wouldn’t waterboard a terrorist even if tens of thousand of Americans could die, I questioned whether he could really be serious. After all, no one could really be this morally obtuse, right? Right I was:

President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials familiar with drafts of the plans. Still under debate is whether to allow exceptions in extraordinary cases.

The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said. The plans would also have the effect of shutting down secret “black site” prisons around the world where the CIA has questioned terror suspects — with all future interrogations taking place inside American military facilities.

However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

So let me get this right. The Obama adminsitration is going to fufill its campaign pledge by concealing the “real” rule from the American people:

For Obama, who repeatedly insisted during the 2008 presidential campaign and the transition period that “America doesn’t torture,” a classified loophole would allow him to follow through on his promise to end harsh interrogations while retaining a full range of presidential options in conducting the war against terrorism.

The proposed loophole, which could come in the form of a classified annex to the manual, is designed to satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama’s flexibility to authorize any interrogation tactics he might deem necessary for national security.

However, such a move would frustrate Senate Democrats and human rights, retired military and religious groups that have pressed for a government-wide prohibition on methods they describe as torture.

There are (at least) two delicious ironies. First, under this scheme, the Obama administration would be less transparent than the Bush administration. Second, like the slooow closing of Guantanamo, the completion of the war in Iraq, and retention of FISA it seems that continuity on the war on terror is breaking out as far as the eye can see. We joke, but this is a good development which should reassure all Americans that the new administration has cast aside the netroot rhetoric and understands the national security ramifications of the war on terror.

So what should we call the loophole? I’d propose: The Cheney Clause.