The Draft Executive Order on Detention and Interrogation

by Deborah Pearlstein

It is early days, and much we don’t know – including, indeed, whether the draft Executive Order the new Administration is contemplating (as reported by the New York Times and Washington Post) is indeed an official document of the new Administration. For the time being, let me offer a few reasons why I’m worried, and reasons why I’m not (completely) (yet).

Why Worry

As reported, the draft order calls not only for considering the resumption of a CIA detention and interrogation program (discontinued under the Obama Administration), but also for reassessing existing directives for how law enforcement agencies should proceed following the arrest of a member of Al Qaeda (or associated forces) in determining the propriety of potential military custody (here’s current guidance); and for considering whether to reanimate detention operations at Guantanamo Bay, which has not received a new detainee since 2009. The draft order would revoke Executive Orders on these topics issued by the Obama Administration when it first took office and replace them with guidance that, among other things, pointedly does not make express the requirement that anyone in U.S. custody be treated consistent with the Geneva Conventions, the Convention Against Torture, or any other relevant treaty obligation the United States has undertaken; the draft order mandates only compliance with the domestic “laws of the United States.”

These are bad – disastrously bad – ideas, for reasons I and more importantly others (including a vast and bipartisan swath of our military and intelligence communities) spent much of the past 15 years establishing in detail. (Perhaps I’ll save a reiteration of the catalog of those reasons for another post.) Of particular concern at this stage, it did not take direct orders to troops to engage in torture across U.S. detention operations. Most of the detainee torture and abuse that happened in the years after 9/11 did not involve the waterboarding of “high value” terrorists. Most of the torture and abuse involved low-level troops and U.S. agents, holding low-level (or wholly innocent) detainees. The reasons for this were several – each important – but one of them was the administration’s equivocal relationship with the international legal regime on which training had long been based. (For a summary description recalling what happened and why at the wholesale level, see, e.g., this old piece of mind that seems unfortunately relevant again.) The Bush Administration’s public and private equivocation on its attention to these rules left, at the very least, a vacuum in guidance, into which vacuum rushed a series of directives that left little doubt that interrogators’ gloves, in any theater of operations, were meant to come off. Even if this administration does nothing else at all from this day forward on detention and interrogation issues, the draft order has already done some damage. Again.

Why Not Worry (Too Much) (Yet)

On the concerning topic of CIA detention, interrogation operations more broadly, and the future of Guantanamo Bay – mostly what the order does is require reconsideration of policies in place. It does not order the re-establishment of a global detention apparatus. Yet. In a functional administration, what would follow from this order is an interagency assessment of the value, including, among others, the Department of Defense and the CIA. Here’s when we get to test whether those internal executive branch checks so many of us have written about in recent years are really capable of slowing the train. There is some reason for optimism. Among others, Secretary of Defense Mattis is on record as an opponent of torture, a view he has (reports indicate) not hesitated to express to his new boss. And while incoming CIA Director Pompeo has expressed differing views in different contexts, there is little doubt members of the intelligence community below the director level retain an acute institutional memory of the personal and professional jeopardy they endured the last time a CIA Director asked them to “get chalk on their cleats” in pushing the line between lawful interrogation and abuse. It seems hard to imagine what more the new president could do to alienate those intelligence community professionals than he has done in the months since his election. Actually re-establishing the system of CIA detention and interrogation would require not only willing cooperation but personal courage of the people the President has compared to the Nazis. Even had that “chalk on their cleats” CIA Director not changed his mind (now agreeing, along with Obama’s former CIA Director, that CIA should never undertake waterboarding again), that is asking, as it were, a lot.

All outside the executive branch, there are checks against detainee torture and abuse now that did not exist in 2001. Some of them are critically important changes in U.S. domestic law since 2001 (Steve Vladeck notes some here), including limits on the kind of interrogation techniques that can be used by any U.S. agency against any detainee in U.S. custody. It would take an act of Congress to undo these laws, and it is not at all clear (I’d say unlikely) the administration could muster 50 votes to support the repeal in the Senate (where Republican Senator (and torture survivor) John McCain stands manifestly in opposition). It is especially less likely in light of the vastly more robust – and today, profoundly energized – domestic NGO community than existed in 2001. In 2001, a tiny handful of (underfunded) domestic NGOs had programs focused specifically on the human rights or civil liberties consequences of U.S. national security policy. Today, one can name a half-dozen such programs off the top of one’s head, all of which boast solid funding and a staff of deep knowledge and experience.

And then there are the allied nations that were essential to hosting the CIA’s secret global detention system the first time around, nations who unblinkingly rushed to our aid in both sympathy and self-interest after the 9/11 attacks. The new administration enjoys no such sympathy now. Indeed, several of the foreign states who aided the CIA in its efforts have faced their own domestic consequences for their role in facilitating U.S. efforts. (Here, for example, is the European Court of Human Rights decision concluding that Poland violated its human rights obligations for hosting a CIA black site in which two CIA prisoners who were waterboarded.) It is difficult to imagine they (or others having witnessed their experience) will be eager to volunteer their services again. Of course the new administration seems keen to make new and different friends.

A student asked me today where I was on a scale of concern to panic. The answer is much closer to the former at this stage than the latter. I’m counting on the constraints we’ve spent the past decade and a half reinforcing to get to work.

7 Responses

  1. There is much to worry about because secret detention is an international crime and so are torture and cruel treatment, etc.

  2. Further, a presidential authorization would be manifestly unlawful.

  3. Hello

  4. Deborah, I respectfully demur. The legal regime in place before the Bush torture was sufficient but was ignored. The current legal regime on torture is the product of a process that follows this path:
    1. We want to torfure
    2. Lawyer says law allows what you want as it is not clear
    3. Things blow up
    4. When it blows up in their face, the lawyer said the law was not clear
    5. We need to pass a law to make it “finally” clear.
    6. Repeat 1-5

    The ambitious lawyers to write memos that reinterpret the current legal regime – no matter what it is – are always available to please a torture oriented President .

    Their memos help block civil claims as they help the qualified immunity argument of the actors that the law was not clear.

    Now, uniformed folks who do this get court-martialed under the UCMJ. Well the lower level ones are sacrificed. The generals are st most getting administrative discipline (reduction of rank or not getting another star).

    Criminal investigations are shaped and conducted in ways to insulate the higher ups.

    Bottom line: the high level civilians and military generals are not criminally prosecuted for the torture.

    So there is literally no downside risk for them to doing it. And their ambition and please the à president discipline is coupled with the attraction of ALL the upside.

    As long as those tortured are overseas, who cares is the attitude.

    As to foreigners, for a price one can always find someone willing to be helpful. Send them to Russia now.

    As long as all of you have been at this and refusing to countenance prosecution of the high-level people, you are complicit in the torture.

    I made as much the point to John Bellinger and Marty Lederman at the ABA Standing Committee on Law and National Security Annual Review last November. The hate of me in the room by the 600 or so national security establishment present for having proposed criminal prosecution was palpable.

    If some of those folks starting with him in John Rizzo’s Company Man (2014) were now sitting in jail for the torture and murder (no statute of limitations for torture when people are murdered, then I would be sanguine.

    But I have watched for 13 or so years the national security and international law community go more squeamish about criminal prosecution than they are about the torture.

    Général McCaffrey was on MSNBC warning that those who do this would be prosecuted. Unfortunately not yet. Low level uniformed soldiers get courtmartialed. More prosaically, shit rolls downhill. Shit did not roll uphill. At

  5. At least so far. Sorry for typos.

  6. John Rizzo on Andrea Mitchell two minutes ago – what an irony.

  7. Response…International law was quite clear that torture had been a crime under the CAT and laws of war as well as a violation of jus cogens and treaty-based human rights. It was also quite clear when the first set of memos was written, for example, that, as 29 US cases, 7 US Country Reports on human rights records of other countries, and 3 decisions of regional human rights courts had recognized, waterboarding and related inducement of suffocation by water is torture.
    With respect to the President’s express and unavoidable constitutional duty under Article II of the Constitution faithfully to execute the law, dozens of US Supreme Court cases had already recognized that the President and all members of the Executive branch are bound by treaties of the US and by customary international law. This had also been the unanimous view of the Founders and Framers. No one is above the law.

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