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How Executive Order 13491 Changed the US Approach to Detention and Interrogation: PDF Download


Executive Order 13491: What Is It and Why Does It Matter?




On January 22, 2009, President Barack Obama issued Executive Order 13491, titled "Ensuring Lawful Interrogations". This executive order was one of his first actions as president, and it aimed to change the policies and practices of the United States government regarding the detention and interrogation of individuals captured in connection with armed conflicts or counterterrorism operations. In this article, we will explain what Executive Order 13491 is, why it was issued, what it contains, what impact it has had, and why it matters for human rights and national security.




executive order 13491 pdf download


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The Background of Executive Order 13491




The Bush Administration's Policies on Detention and Interrogation




Executive Order 13491 was issued in response to the controversial policies and practices of the previous administration under President George W. Bush. After the terrorist attacks of September 11, 2001, the Bush administration adopted a series of directives, orders, and regulations that authorized the use of harsh interrogation techniques, such as waterboarding, sleep deprivation, stress positions, and sensory deprivation, on detainees suspected of having links to al-Qaeda or other terrorist groups. These techniques were considered by many experts and critics to amount to torture or cruel, inhuman, or degrading treatment, which are prohibited by international law and US domestic law.


The Bush administration also established a network of secret detention facilities, known as "black sites", where detainees were held without access to legal counsel, judicial review, or international monitoring. These facilities were operated by the Central Intelligence Agency (CIA), which was given broad discretion and authority to detain and interrogate individuals without following the rules and standards that applied to other US agencies or military personnel. The Bush administration argued that these policies and practices were necessary and effective to protect national security and prevent future terrorist attacks.


The Criticism and Controversy over the Bush Administration's Policies




The policies and practices of the Bush administration on detention and interrogation were widely criticized and condemned by human rights organizations, legal experts, international bodies, foreign governments, media outlets, and even some former US officials. They argued that these policies and practices violated US law, international law, moral principles, and democratic values. They also challenged the claims that these policies and practices were necessary and effective, citing evidence that torture and abuse did not produce reliable or useful intelligence, but rather harmed national security by fueling resentment, radicalization, recruitment, and retaliation among potential enemies.


Some of the most prominent examples of criticism and controversy over the Bush administration's policies include:


  • The release of the Abu Ghraib prison photos in 2004, which showed US soldiers abusing and humiliating Iraqi detainees in a US-run prison in Iraq.



  • The revelation of the CIA's secret detention program and the use of "enhanced interrogation techniques" by investigative journalists and whistleblowers in 2005 and 2006.



  • The Supreme Court's ruling in Hamdan v. Rumsfeld in 2006, which held that the military commissions established by the Bush administration to try detainees at Guantanamo Bay violated US law and the Geneva Conventions.



  • The publication of the Senate Intelligence Committee's report on the CIA's detention and interrogation program in 2014, which detailed the extent, brutality, and ineffectiveness of the CIA's activities.



The Obama Administration's Promise to Change the Policies




During his presidential campaign in 2008, Barack Obama promised to change the policies and practices of the Bush administration on detention and interrogation. He pledged to end torture, close Guantanamo Bay, restore the rule of law, and uphold human rights. He also criticized the Bush administration for damaging America's reputation and moral authority in the world. He said: "We have to send a clear message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have an Attorney General who is not afraid to say no to the President."


After winning the election, Obama followed through on his promise by issuing Executive Order 13491 on his second day in office. He said: "I can say without exception or equivocation that the United States will not torture. We will abide by the Geneva Conventions. We will uphold our highest values and ideals."


The Content of Executive Order 13491




The Revocation of Executive Order 13440 and Other Inconsistent Directives




Executive Order 13491 revoked Executive Order 13440, which was issued by President Bush in 2007. Executive Order 13440 had interpreted Common Article 3 of the Geneva Conventions, which sets minimum standards for the treatment of detainees in armed conflicts, in a narrow and restrictive way. It had also authorized the CIA to continue using "enhanced interrogation techniques" that were not approved by the Army Field Manual, which is the official guide for military interrogations.


Executive Order 13491 also revoked all other executive directives, orders, and regulations that were inconsistent with it, including those issued by or to the CIA from September 11, 2001, to January 20, 2009, concerning detention or interrogation. It required heads of departments and agencies to take all necessary steps to ensure that their directives, orders, and regulations were consistent with Executive Order 13491. It also authorized the Attorney General to provide guidance on which directives, orders, and regulations were inconsistent with Executive Order 13491.


The Definition of Key Terms and Concepts




Executive Order 13491 defined some key terms and concepts that were relevant to its implementation. These include:


  • "Army Field Manual 2-22.3", which means FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006. This is the current version of the Army Field Manual that governs military interrogations.



  • "Army Field Manual 34-52", which means FM 34-52, Intelligence Interrogation, issued by the Department of the Army on May 8, 1987. This is the previous version of the Army Field Manual that governed military interrogations before it was replaced by FM 2-22.3.



  • "Common Article 3", which means Article 3 of each of the Geneva Conventions. This article applies to all parties involved in an armed conflict not of an international character (such as a civil war or an insurgency). It requires them to treat humanely all persons taking no active part in hostilities (such as civilians or prisoners of war). It also prohibits violence to life and person (such as murder, mutilation, cruel treatment, or torture), outrages upon personal dignity (such as humiliating or degrading treatment), and sentencing or execution without due process.



The Requirement to Follow the Army Field Manual




Executive Order 13491 required that all interrogations of individuals in US custody or under the effective control of the US in any armed conflict, whether conducted by military or civilian personnel, follow the guidance and techniques in the Army Field Manual. The Army Field Manual is the official guide for military interrogations, and it contains a list of 19 approved interrogation techniques, such as direct questioning, incentive, emotional approach, and false flag. The Army Field Manual also prohibits any interrogation technique that is not listed or authorized by it, such as physical or mental torture, threats, coercion, or abuse.


The Army Field Manual was revised in 2006 to incorporate the principles of Common Article 3 and the Convention Against Torture, and to ensure consistency with US law and policy. Executive Order 13491 also required that any changes to the Army Field Manual be made available to the public 30 days before they take effect. The purpose of requiring all interrogations to follow the Army Field Manual was to ensure that all individuals in US custody or under US control are treated humanely and lawfully, and that all interrogators use effective and ethical methods to obtain reliable and useful intelligence.


The Establishment of the Special Task Force on Interrogation and Transfer Policies




Executive Order 13491 established a Special Task Force on Interrogation and Transfer Policies, chaired by the Attorney General, with the Director of National Intelligence and the Secretary of Defense serving as co-vice chairs. The Special Task Force was composed of senior officials from various departments and agencies involved in detention and interrogation issues, such as the Department of State, the Department of Homeland Security, the CIA, and the FBI. The Special Task Force had two main missions: (1) to study and evaluate whether the interrogation practices and techniques in the Army Field Manual provide an appropriate means of acquiring the intelligence necessary to protect national security; and (2) to study and evaluate the practices of transferring individuals to other nations to ensure compliance with US law, policy, and international obligations.


The Special Task Force issued its recommendations to the President on August 24, 2009. Among its recommendations were:


  • To create a specialized interrogation group (HIG) that would bring together officials from law enforcement, the Intelligence Community, and the Department of Defense to conduct interrogations of high-value detainees in a manner that would strengthen national security consistent with the rule of law.



  • To develop a scientific research program on interrogation methods and techniques that would inform future revisions of the Army Field Manual.



  • To establish a system of periodic review for individuals detained at Guantanamo Bay who have not been charged, convicted, or designated for transfer.



  • To adopt a policy statement on transfers that would affirm US commitment to humane treatment and respect for human rights.



  • To enhance training and oversight for personnel involved in transfers.



  • To improve coordination and cooperation with foreign governments on transfer issues.



The Prohibition of CIA Detention Facilities




Executive Order 13491 prohibited the CIA from operating any detention facilities. It ordered that any individuals in CIA custody or under CIA effective control be transferred to Defense Department facilities or other locations where they can be registered with the International Committee of the Red Cross (ICRC). It also ordered that any existing CIA detention facilities be closed as soon as possible. The purpose of prohibiting CIA detention facilities was to end the practice of secret detention that had been criticized for violating human rights and undermining accountability and transparency.


The Compliance with International Law and Treaties




The Impact of Executive Order 13491




The Reactions and Responses from Various Stakeholders




Executive Order 13491 received mixed reactions and responses from various stakeholders, such as human rights groups, legal experts, intelligence officials, foreign governments, and the public. Some of the main reactions and responses include:


  • Human rights groups generally welcomed Executive Order 13491 as a positive step toward ending torture and abuse, restoring the rule of law, and upholding human dignity. They praised the revocation of Executive Order 13440 and the requirement to follow the Army Field Manual. They also commended the prohibition of CIA detention facilities and the compliance with international law and treaties. However, some human rights groups also expressed concerns or criticisms about some aspects of Executive Order 13491. They questioned whether the Army Field Manual was sufficiently humane and effective, and whether it should be revised or supplemented with more guidance. They also urged the Obama administration to investigate and prosecute those responsible for torture and abuse under the Bush administration, and to release more information about the CIA's detention and interrogation program.



  • Legal experts also had diverse views on Executive Order 13491. Some legal experts supported Executive Order 13491 as a clear and comprehensive statement of US law and policy on detention and interrogation. They argued that Executive Order 13491 reaffirmed US commitment to its constitutional principles, statutory obligations, and treaty commitments. They also noted that Executive Order 13491 enhanced US credibility and legitimacy in the international community. Other legal experts criticized Executive Order 13491 as a vague and incomplete framework for detention and interrogation. They contended that Executive Order 13491 left many unresolved issues and ambiguities, such as the definition of torture, the scope of Common Article 3, the status of detainees at Guantanamo Bay, and the role of courts in reviewing detention and interrogation decisions.



  • Intelligence officials had varied reactions to Executive Order 13491. Some intelligence officials agreed with Executive Order 13491 as a necessary and appropriate reform of detention and interrogation practices. They claimed that torture and abuse were counterproductive and harmful to national security, and that they preferred to use lawful and ethical methods to obtain intelligence. They also supported the creation of the HIG as a way to improve coordination and cooperation among different agencies involved in interrogation. Other intelligence officials disagreed with Executive Order 13491 as a restrictive and unrealistic limitation on their ability to protect national security. They argued that torture and abuse were sometimes necessary and effective to elicit information from high-value detainees, and that they needed more flexibility and discretion to use different techniques depending on the circumstances. They also expressed concern about the potential loss of control and authority over interrogation operations under the HIG.



The Challenges and Limitations of Implementing Executive Order 13491




Executive Order 13491 faced several challenges and limitations in its implementation. Some of the main challenges and limitations include:


  • The difficulty of closing Guantanamo Bay within one year, as originally planned by President Obama. The closure of Guantanamo Bay was hindered by various legal, political, and practical obstacles, such as the lack of alternative locations for transferring or prosecuting detainees, the opposition of Congress and some foreign governments, and the complexity of reviewing each detainee's case and status.



  • The uncertainty and controversy over the appropriate venue and mechanism for prosecuting detainees, whether in federal courts or military commissions. The choice of venue and mechanism was influenced by various factors, such as the availability and admissibility of evidence, the protection of classified information, the rights and interests of victims and defendants, and the public perception and opinion.



  • The possibility of using other detention facilities or methods that may not comply with Executive Order 13491 or international law. For example, some reports suggested that the US may have used or supported secret detention facilities in other countries, such as Somalia or Afghanistan, or relied on proxy detention or rendition by foreign governments or entities.



  • The ambiguity and inconsistency of some terms and concepts in Executive Order 13491 or related documents. For example, some terms and concepts, such as "humane treatment", "effective control", "armed conflict", or "high-value detainee", may have different interpretations or applications depending on the context or situation.



  • The lack of transparency and accountability for past or present violations of Executive Order 13491 or international law. For example, some critics argued that the US did not adequately investigate or prosecute those responsible for torture and abuse under the Bush administration, or disclose enough information about the CIA's detention and interrogation program.



The Implications for Human Rights and National Security




Executive Order 13491 had significant implications for human rights and national security. Some of the main implications include:


  • The improvement of US reputation and credibility in the world. Executive Order 13491 signaled a shift in US policy and attitude toward human rights and international law. It demonstrated US commitment to ending torture and abuse, respecting human dignity, and abiding by its obligations. It also enhanced US cooperation and dialogue with its allies and partners on detention and interrogation issues.



  • The promotion of US values and principles at home and abroad. Executive Order 13491 reflected US values and principles, such as democracy, liberty, justice, and equality. It also supported US interests and goals, such as promoting human rights, strengthening the rule of law, preventing terrorism, and ensuring security.



  • The challenge of balancing human rights and national security. Executive Order 13491 recognized that human rights and national security are not mutually exclusive, but rather mutually reinforcing. It aimed to balance human rights and national security by ensuring that detention and interrogation operations are lawful, humane, effective, and consistent with US law, policy, and international obligations.



Conclusion




and interrogation of individuals captured in connection with armed conflicts or counterterrorism operations. It revoked the previous policies and practices of the Bush administration that authorized torture and abuse, secret detention, and disregard for international law. It required all interrogations to follow the Army Field Manual, established a Special Task Force on Interrogation and Transfer Policies, prohibited CIA detention facilities, and reaffirmed compliance with international law and treaties. It faced various challenges and limitations in its implementation, such as the difficulty of closing Guantanamo Bay, the uncertainty over the venue and mechanism for prosecuting detainees, the possibility of using other detention facilities or methods that may not comply with the executive order or international law, the ambiguity and inconsistency of some terms and concepts in the executive order or related documents, and the lack of transparency and accountability for past or present violations of the executive order or international law. It had significant implications for human rights and national security, such as the improvement of US reputation and credibility in the world, the promotion of US values and principles at home and abroad, and the challenge of balancing human rights and national security.


Executive Order 13491 was a major step toward ensuring lawful interrogations and respecting human rights. However, it was not a final or comprehensive solution to all the issues and problems related to detention and interrogation. It left many questions unanswered and many issues unresolved. It also faced many obstacles and oppositions from various sources. Therefore, it is important for us to learn more about Executive Order 13491 and its related issues, to monitor its implementation and impact, and to advocate for its improveme


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