On January 25, 2017, during his first post-election press interview, President Donald Trump was asked, “do you want waterboarding?” In his response, the President said, “I will say this, I will rely on [Director of the Central Intelligence Agency Mike] Pompeo and [Secretary of Defense James] Mattis and my group. And if they don’t wanna do, that’s fine. If they do wanna do, then I will work for that end. I wanna do everything within the bounds of what you’re allowed to do legally.”
Two days later, the President stated that he would rely on Secretary Mattis on whether to bring back waterboarding, noting that the Secretary’s decision would override his own. At the same time, however, several media entities reported that the Administration has prepared a draft executive order that could allow CIA to re-establish a detention and interrogation program. These entities have also published a document they represent to be the draft executive order.
In short, the draft executive order should not be finalized. Even if the legal impediments to re-establishing a CIA detention and interrogation program could be overcome, an order to re-establish such a program would place in jeopardy the liberty, property, and reputation of each CIA officer tasked to carry out that order once the Administration changes. The order would contravene elemental tenets of leadership, including the support of your own people.
This is not something Secretary Mattis is likely to do.
The President presented a caveat to his willingness to use waterboarding by suggesting intent only to act within the law. There should be little doubt, however, that current U.S. law does not allow the use of waterboarding—or any other of the CIA’s former enhanced interrogation techniques.
For the President to both authorize waterboarding and stay within the law, he would have to seek changes in the law. Yet, there is doubt that the President alone could alter the legal landscape sufficiently to allow waterboarding, or that Congress would be willing to make the type of statutory changes necessary to do so. Even if the law could be changed enough to allow the Department of Justice’s Office of Legal Counsel in good faith issue a legal opinion that enhanced interrogation techniques did not violate U.S. law, significant policy impediments would still remain.
Both Secretary Mattis and Director Pompeo have expressed opposition to a return to any of the CIA’s past enhanced interrogation measures. Thus, there is significant doubt Secretary Mattis would advise the President—or that Director Pompeo would order the CIA—to re-establish a CIA detention and interrogation program.
Ultimately, the life-span of legal and policy support for enhanced interrogation is short. It is very likely that a future Administration will oppose the use of enhanced interrogation, reject the legal basis relied upon to re-establish the program, and open criminal investigations targeting numerous CIA personnel who worked in the program.
Accordingly, there should be no doubt that to order the CIA to restart a detention and interrogation program, an official would have to act with a callous disregard for the men and women of the CIA.
Today’s legal landscape is materially different from the legal landscape against which the Department of Justice analyzed the lawfulness of CIA’s enhanced interrogation techniques in August 2002. The statutory backdrop began changing with the enactment of the Detainee Treatment Act of 2005 and continued across the Bush and Obama Administrations.
In addition to statutory changes, Presidential guidance has also changed. Within his first few days in office, President Obama issued Executive Order 13491, revoking President Bush’s Executive Order 13440 that had set the conditions under which a CIA detention and interrogation program would be deemed to comply with the Geneva Conventions for purposes of U.S. law.
After revoking the Bush executive order, President Obama limited interrogation techniques and approaches to those listed in the Army Field Manual, forbidding the CIA from operating detention facilities, and directing all U.S. government departments and agencies to provide the International Committee of the Red Cross with notification of, and timely access to, any individual who is detained in any armed conflict and in the custody or under the effective control of the U.S. government or detained within a facility owned, operated, or controlled by the U.S. government.
The draft executive order, reportedly being contemplated by the current Administration, would, among other things, revoke President Obama’s Executive Order 13491 and reinstate President Bush’s Executive Order 13440, effectively removing the ban on the CIA operating detention facilities, but having no effect on the ban against using interrogation techniques other than those listed in the Army Field Manual.
A little over a year ago, certain key provisions of President Obama’s executive order were cemented in Section 1045 of the National Defense Authorization Act, and therefore, a revocation of Executive Order 13440 does not remove any legal obstacles to the use of enhanced interrogation techniques.
Perhaps recognizing an executive order cannot change a statute; the Trump Administration’s draft executive order would set the stage for asking the Congress to do so. The draft contains a direction for the President’s national security advisors to “recommend any legislative proposals that would be necessary to protect our national security and to permit the resumption of an effective and lawful interrogation program.”
Any recommendation to the President for legislative proposals that would unambiguously permit the resumption of an interrogation program that included waterboarding would require amending the statutory definition of torture since legal arguments rejecting the Department of Justice’s opinions on the former CIA detention and interrogation program contended it misinterpreted that definition. Therefore, so long as that definition remains as is, CIA officers directed to carry out a detention and interrogation program are subject to “friendly fire” from seesawing legal interpretations.
A legislative proposal to change the definition of torture, however, could equate to asking the Congress to derogate from U.S. obligations under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment. In ratifying the Convention, the Senate had conditioned its advice and consent on the United States using a specific definition of torture. Thus, an Administration request to Congress that it amend the statutory definition of torture to differ from that in the Senate’s advice and consent to the Convention, could equate to asking the Congress to breach the Convention.
President Trump should not authorize his Administration to make such a request, as it will certainly be met with condemnation from the United Nations, numerous individual state parties to the Convention, international organizations and groups, numerous U.S. domestic groups, and a significant portion of Americans.
If such a request were to be made, Congress should decline to act on it. It is one thing for lawyers to differ on how to interpret the legal definition of torture, but it is quite another to change a definition upon which the Senate conditioned its advice and consent to a treaty.
A new legal analysis today would have to consider the substantial legal, political, and public discourse on the propriety, acceptability, morality, and lawfulness of waterboarding and other enhanced interrogation techniques, the reasonableness of the past opinions opining on the lawfulness of the CIA detention and interrogation program, as well as differing assessments on the effectiveness of those techniques. The President’s national security team must also consider this discourse before making the policy decision to proceed. Should a policy decision be made to proceed, Director Pompeo must consider this discourse, his prior statements, and, most importantly, his responsibility to institution of the CIA—and its men and women—before directing them to re-establish a detention and interrogation program.
Should the men and women of the CIA be ordered to re-establish a detention and interrogation program, they must pause and give serious consideration to that same discourse, remember the 2009 rejection of the Department of Justice opinions as soon as Administrations changed, and recall the years of criminal and political investigations that followed, before they decide whether to comply with such an order.
Administrations will change; new politicians and lawyers with materially different views will take office and reject the validity of any foundational legal opinion and declare the re-established program unlawful. Ordering the men and women of the CIA to re-establish a CIA detention and interrogation program will therefore put them in the untenable position of choosing between two no-win positions: to disobey an order that will have been determined to be lawful, and thus potentially face disciplinary action up to and including being fired; or, to obey an order that they know a former President and Attorney General both declared unlawful—and one highly likely to be declared unlawful by an Attorney General in a future Administration—and potentiality face criminal charges. This certainty should be of substantial concern to CIA leadership and staff since a future Justice Department could well opine that given the 2009 rejection of the 2002-2007 legal opinions, CIA personnel who participated in a re-established program should not be entitled to rely on any post 2016 Department of Justice legal opinion finding such a program lawful and, unlike in 2009, indict and prosecute them.
The men and women of the CIA should not be put in such a position—they are not disposable patriots.