Anyone hoping that Donald Trump’s conversations with James Mattis or the pledges of his nominees on Capitol Hill over the past two weeks were a sign that the president had abandoned his campaign promises to bring back “a hell of a lot worse than waterboarding” got some discouraging news Wednesday.
A draft executive order obtained by the New York Times would lift many of the restrictions on the treatment and handling of detainees put in place by the Obama administration, and could potentially lead to the return of some of the most controversial interrogation practices of the Bush administration.
White House spokesman Sean Spicer distanced Trump from the draft Wednesday, saying, “It is not a White House document.” He continued in response to a follow up question:
This is the second day we are getting asked about documents that are floating around and people saying—frankly, reports being published attributing documents to the White House that are not White House documents. To the best of my knowledge, he has not seen it.
It’s not quite clear from this whether “not a White House document” means it didn’t actually come from the White House or if it’s merely not official yet. The document is clearly only a draft. It includes some incomplete sections and crossed-out words. If it’s really under consideration, though, or even just an indication of the administration’s thinking, it’s disturbing. Specifically, the order if signed as drafted would undue two orders signed by Barack Obama early in his presidency, one closing down the detention center at Guantánamo Bay, the other ending CIA “black site” prisons, granting the Red Cross access to detainees, and limiting interrogations to methods in the Army Field Manual. The draft order also directs the secretary of defense to review the manual and make modifications to allow for the “safe, lawful, and effective” interrogation of terror suspects. (In the draft shared by the Times, the term “global war on terrorism” is crossed out and replaced with “fight against radical Islamism.”)
During the Bush administration, the CIA rendered dozens of terror suspects for “enhanced interrogations” at black sites throughout the world, including in Poland, Romania, Afghanistan, and Thailand. Detainees were often unaware of what country they were in, and were subjected to interrogation methods including waterboarding, sexual humiliation, sleep deprivation, stress positions, and exposure to extreme temperatures.
These methods are still illegal. As the order notes, legislation passed as part of the 2016 National Defense Authorization Act mandates that detainees under the control of any U.S. personnel, including the CIA, should not be subjected to techniques other than those allowed in the field manual. That would rule out those above. Trump’s attorney general nominee, Jeff Sessions, voted against that amendment, though he said during his testimony on Capitol Hill last week that waterboarding was “absolutely” illegal under current law.
CIA Director Mike Pompeo has defended these illegal methods in the past but said during his confirmation hearing that he would disobey a presidential order to resume waterboarding and other coercive methods and couldn’t imagine that he would be asked to do so. He also told Sen. John McCain that if any changes to the field manual were being contemplated, he would discuss that with Congress. McCain put out a statement Wednesday, saying, “The President can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America.”
The thing is, the law was the law even before the Bush administration. As Naureen Shah of Amnesty International put it to me in an interview in November, it would take “legal gymnastics” to get around current laws, but if torture were to take place, it would most likely happen in secret and be justified later. The reauthorization of black sites would make that more likely.
As I’ve written, the Obama administration arguably made this possible, by failing to hold anyone legally accountable for abuses committed under the Bush administration, and keeping in place a fair bit of the legal architecture, including the secret detention and interrogation of terror suspects before they’re turned over to the civilian justice system, that allowed torture to happen. Likewise, this order, if signed, would put an end to the Obama administration’s hope that it could close Guantánamo by slowly whittling the detainee population down one transfer at a time. There are only 41 detainees left at Gitmo, but the order directs the Pentagon to use the facility “for the detention and trial of newly captured alien enemy combatants.” Trump may have also been serious about his pledge to keep Guanánamo open and “load it up with bad dudes.”