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Why the Trump Detention and Interrogation EO May Be Illegal

Via the New York Times, the indefatigable Charlie Savage has a summary of the forthcoming three-page Executive Order on “Detention and Interrogation of Enemy Combatants.” Among other things, Charlie reports, the EO “would clear the way for the [CIA] to reopen overseas ‘black site’ prisons, like those where it detained and tortured terrorism suspects before former President Obama shut them down.” Additionally, the EO would “revoke Mr. Obama’s directive to give the International Committee of the Red Cross [ICRC] access to all wartime detainees in American custody.”

There is a ton of stuff here (and some other stuff on Guantánamo that will take a while to process), but I wanted to write to make three opening points that I hope everyone paying attention to this topic keeps in mind:

  1. “Black sites” themselves may still be illegal under U.S. law, since, as the Supreme Court held in Hamdan v. Rumsfeld, Common Article 3 of the Geneva Conventions applies to the non-international armed conflict between the United States and al Qaeda (and its affiliates), and it’s more than a little difficult to reconcile black sites with some of that provision’s protections.
  2. In any event, in addition to the 2009 Obama Executive Orders, Congress as part of the McCain-Feinstein Amendment to the FY2016 National Defense Authorization Act, has formally required ICRC access to “any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractor of the United States Government . . . .” Blocking ICRC access would therefore violate the statute.
  3. And, perhaps most importantly, the McCain-Feinstein Amendment limits the techniques that can be used against any detainee either in U.S. custody, under the effective control of the United States, or held in a facility owned, operated, or controlled by the United States, to those “authorized by and listed in the Army Field Manual 2–22.3.”

Don’t get me wrong–the EO is a Very. Big. Deal. And it’s going to create lots of work, litigation, and, frankly, angst in our field. But lest folks think this is just President Trump undoing the actions of President Obama, don’t forget about Congress–and the increasingly vital McCain-Feinstein Amendment.

[Update (11:25 a.m. EST)]: Via the Washington Post, here’s what appears to be a draft of the EO and a cover sheet, which, among other things, dates the 9/11 attacks to “September 11, 2011.”


About the Author

Co-Editor-in-Chief of Just Security, Professor of Law at the University of Texas School of Law Follow him on Twitter (@steve_vladeck).