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The Dark Secrets of Appendix M

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We really should be used to this by now. After almost six years in office, President Obama is far more like George W. Bush in national-security matters than he led the American people to believe.

For example, the New York Times’ Charlie Savage reports that Obama has yet to decide whether the international ban on torture applies to U.S. government conduct outside the United States. Savage writes that,

When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.

Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute “acknowledges and confirms existing obligations” under the treaty, the United Nations Convention Against Torture.

Unfortunately, when Obama became president he did not follow through. “And now,” Savage writes,

President Obama’s legal team is debating whether to back away from his earlier view. It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.

Obama has to formulate a position by next month, when his representatives will appear before the UN’s Committee against Torture for the first time.

“State Department lawyers are said to be pushing to officially abandon the Bush-era interpretation,” Savage reports. However, this view is not unanimous within the government.

Savage notes that Obama “forbade [all] cruel interrogations” by executive order in 2009, but Jeffrey Kaye reported earlier this year in the Guardian that this claim is misleading:

The United States Army Field Manual (AFM) on interrogation has been sold to the American public and the world as a replacement for the brutal torture tactics used by the CIA and the Department of Defense during the Bush/Cheney administration.

On 22 January 2009, President Obama released an executive order stating that any individual held by any US government agency “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3.”

But a close reading of Department of Defense documents and investigations by numerous human rights agencies have shown that the current Army Field Manual itself uses techniques that are abusive and can even amount to torture.

“Disturbingly,” Kaye continued,

the latest version of the AFM mimicked the Bush administration in separating out “war on terror” prisoners as not subject to the same protections and rights as regular prisoners of war. Military authorities then added an appendix to the AFM that included techniques that could only be used on such “detainees,” i.e., prisoners without POW status.

Labeled Appendix M, and propounding an additional, special “technique” called “Separation”, human rights and legal group have recognized that Appendix M includes numerous abusive techniques, including use of solitary confinement, sleep deprivation and sensory deprivation.

“Numerous human rights groups,” Kaye continued, “have called for the elimination of Appendix M and/or the rewriting of the entire Army Field Manual itself.”

But rather than scrapping Appendix M, the administration may now be on the verge of declaring that U.S. government harsh conduct toward prisoners detained outside the United States, such as Guantanamo Bay, Cuba, is not covered by the Treaty Against Torture.

“Military and intelligence lawyers,” Savage writes,

are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

Administration officials told Savage that regardless of the treaty interpretation, Obama’s position is unmistakable. But Appendix M shows that this is not the case.

Anyone who voted for Obama thinking his foreign policy would be different from Bush’s should have learned a hard lesson.

Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF’s monthly journal, Future of Freedom.

 

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Sheldon Richman, author of America’s Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is a senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at Antiwar.com.  He is also the Executive Editor of The Libertarian Institute.

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