The Cable

Drafts of Trump Orders on Gitmo and Interrogation Spark Fear of Return to 9/11-Era Mindset

The new president is reportedly considering moves to declare Guantanamo open for business and consider a return to “black sites” and enhanced interrogation for new detainees.

WASHINGTON, DC - JANUARY 25:  (AFP OUT) U.S. President Donald Trump delivers remarks during a visit to the Department of Homeland Security January 25, 2017 in Washington, DC. While at the department, Trump signed two executive orders related to internal security and to begin the process of building a wall along the U.S.-Mexico border.  (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - JANUARY 25: (AFP OUT) U.S. President Donald Trump delivers remarks during a visit to the Department of Homeland Security January 25, 2017 in Washington, DC. While at the department, Trump signed two executive orders related to internal security and to begin the process of building a wall along the U.S.-Mexico border. (Photo by Chip Somodevilla/Getty Images)

A draft executive order purportedly written by the Trump administration which leaked Wednesday promised to revive the searing debates of the mid-2000s over torture and secret CIA prisons where al Qaeda suspects were kept for weeks at a time outside the bounds of international law.

The document, of which the White House disavowed knowledge, calls for the Defense Secretary and other national security chiefs to reexamine the justifications for torture, and orders a review of the Army field manual, which all U.S. agencies must, by law, use when interrogating suspects.

In an interview with ABC News airing Wednesday night, Trump said he would confer with Defense Secretary James Mattis and CIA Director Mike Pompeo before implementing any new policy. But he said that he had asked top intelligence officials this week, “does torture work?”

“And the answer was yes, absolutely,” Trump said.

If Trump does follow through with such an order, it would run smack into existing law and the stated views of Trump’s just-confirmed Cabinet secretaries and top national security chiefs, including Mattis and Pompeo, as Sen. John McCain, (R-Ariz.), reminded the president.

“The President can sign whatever executive orders he likes,” said McCain, the chairman of the Armed Services Committee who himself was tortured as a prisoner of war in Vietnam and co-authored the law to make the torture ban permanent. “But the law is the law. We are not bringing back torture in the United States of America.”

On the campaign trail last year, Trump repeatedly promised to work to bring back techniques “a hell of a lot worse” than waterboarding and other forms of coercion employed by the CIA during George W. Bush’s administration.

U.S. Sen. Mark R. Warner (D-VA), Vice Chairman of the Senate Select Committee on Intelligence, said Wednesday that “a ban on torture is not simply a matter of policy – it is U.S. law. I will not accept any attempt by this Administration to circumvent that policy, directly or through others.”

He added that he spoke Wednesday morning with Pompeo and Mattis to reaffirm that “any attempt by this Administration to restart torture is absolutely unacceptable, and I will strongly oppose it.”

According to drafts of the orders that have been circulating, Trump would direct that Guantanamo remain open and take in new detainees. He would also order a review of whether to resume the classified CIA “black site” detention program, as well as reviewing the U.S. Army field manual that by law bars U.S. officials from using enhanced interrogation techniques widely considered to be torture.

The executive orders would kick off a review of “whether to reinstate the program of interrogation of high-value alien terrorists to be operated outside the United States, and whether such a program should include the use of detention facilities operated by the C.I.A,” according to the New York Times. But another section of the draft states “no person in the custody of the United States shall at any time be subjected to torture, or cruel, inhuman or degrading treatment or punishment, as described by U.S. or international law.”

The Defense Department declined to comment on the leaked draft, referencing White House spokesman Sean Spicer’s comments Wednesday morning that it is “not a White House document, I have no idea where it came from.”

Trump made his own campaign pledges to “load [Guantánamo] up with some really bad dudes.” While he’s since toned down his vows about reinstating government torture — in part at the behest of Mattis, a retired Marine Corps general, who told him torture wasn’t effective — he hasn’t ruled it out. He’s never backed off his plan to keep Guantánamo open, and has doubled down on expanding it, even suggesting he may try U.S. citizens in military commissions there.

On President Obama’s first day in office in January 2009, he issued executive orders on interrogations and detentions at the U.S. military center at Guantanamo Bay, Cuba.

Soon after, the Obama administration set up an interagency High-Value Detainee Interrogation Group (HIG) under the FBI that studies best practices in ongoing U.S. interrogations and investigations. In an August 2016 report, the group found that taking time to understand the detainee’s motivations and “building rapport is generally accepted as the most successful component of a successful interrogation,” as opposed to aggression and forceful techniques.

With the order, Obama effectively froze military commissions considering the cases of detainees at Guantanamo; mandated a review of every prisoner’s case; and ordered that the detention facilities be closed no more than one year later. He did not ultimately succeed; today, 41 detainees remain at Guantanamo, and government lawyers defending the alleged Sept. 11, 2001 co-conspirators in military commissions say a trial is still years away.

One of those lawyers, James Connell, a Pentagon-contracted attorney, said that despite legislation that codified Obama’s ban on torture and lawmakers’ outcry to the reports on Wednesday, Trump could still find a way around the law “with the stroke of a pen.” It “would not be very difficult for a new office of legal counsel to construe some very, very severe treatment that violates American values and American law” by working on the language to skirt the intentions of Congress, he said.


Photo Credit: Chip Somodevilla/Getty Images

Molly O’Toole is a senior reporter at Foreign Policy, covering immigration, refugees, and national security. She was FP’s sole 2016 presidential campaign reporter, on the trail from New Hampshire to Nevada. Previously, she covered the politics of national security for Atlantic Media’s Defense One, where she reported from Congress, the White House, the Pentagon, and the State Department. Before that, she was a news editor at the Huffington Post. Molly has also reported on national and international politics for Reuters, the Nation, The Associated Press, and Newsweek International, among others, from Washington, New York, Mexico City, and London. She received her dual master’s degree in journalism and international relations from New York University and her bachelor’s from Cornell University and in 2016 was a grant recipient of the International Women’s Media Foundation. She will always be a Californian. @mollymotoole

Paul McLeary is Foreign Policy’s senior reporter covering the U.S. Defense Department and national security issues. @paulmcleary

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