When Barack Obama signed the executive order that closed secret CIA detention facilities abroad, known as “black sites”, the world cheered as they saw American intelligence defanged. After all, without some kind of detention facilities, how would the CIA hold wanted terrorists even for a few days while determining how to process them? Suspected terrorists would either have to be killed outright — not very Hope-and-Changey — or intelligence agents would have to let them go about their business. Eli Lake at the Washington Times discovers that Obama’s order leaves a little-noticed loophole to cover such situations:
President Obama’s executive order closing CIA “black sites” contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad.
The provision illustrates that the president’s order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time.
Current and former U.S. officials, who spoke on the condition that they aren’t identified because of the sensitivity of the subject, said such temporary facilities around the world will remain open, giving the administration the opportunity to seize and hold assumed terrorists.
The detentions would be temporary. Suspects either would be brought later to the United States for trial or sent to other countries where they are wanted and can face trial.
The exception is evidence that the new administration, while announcing an end to many elements of the Bush “war on terror,” is leaving itself wiggle room to continue some of its predecessor’s practices regarding terrorist suspects.
I have no complaints about that loophole. The war on terrorism, or terrorists, or Islamic fundamentalist terrorists — whatever the new administration wants to call it — will require our intelligence agencies to work on the front lines. They need to grab dangerous people before they can carry out attacks, not afterwards when thousands or perhaps millions of Americans lay dead in the streets. That means the CIA needs reliable detention facilities abroad.
The Obama administration doesn’t want the CIA holding people in these facilities forever, though, and that’s a reasonable concern. Mistakes can still be made, and that means the US has to have some kind of system to vet the detainees independently of the capturing agents. That doesn’t mean they should appear in a federal court in LA or Minneapolis, but some method of determining danger, value, and process for each suspected terrorist grabbed by intel agencies. The military has a tribunal system for processing such detainees (and their own detention facilities); the CIA could use the military system for these purposes.
Of course, the military uses Guantanamo Bay for much of this work, and Obama wants it closed within a year. We still don’t know what Obama proposes for a replacement, both in location and process. Until we know that, we can’t properly assess this executive order and its rather wide and unnoticed loophole.