As is now well-known, the White House has disclaimed the draft EO which appeared to open the door to torture and revival of the CIA detainee program. (Sean Spicer: This is “not a White House document.”) The new CIA Director Steve Pompeo and Secretary of Defense General James N. Mattis reportedly were shocked to learn about it, lawmakers on both sides of the aisle have made clear that return to enhanced interrogation unacceptable, and whoever drafter that document has presumably been reminded that things like the CIA black sites and use of harsh interrogation techniques violates the law – and are thus incompatible with the final sections of the draft order which commit to upholding the prohibition on torture and cruel, inhuman, or degrading treatment and to “comply with all laws of the United States.”
Steve has already reminded us of some of those legal obligations, including: (i) the requirement that the United States comply with the humane treatment obligations of Common Article 3 of the Geneva Conventions in carrying out the ongoing armed conflict against al Qaeda and associated forces; (ii) the requirement, from the FY 2016 National Defense Authorization Act (NDAA) that the International Committee for the Red Cross be given access to any individual in the custody or control of, the United States in any armed conflict; and (iii) the requirement, also in the FY 2016, that interrogation techniques be limited to those authorized by and listed in the Army Field Manual 2–22.3.
I write to emphasize additional legal limitations, also included in that 2016 NDAA.
The Secretary of Defense, in consultation with the Attorney General, FBI Director, and Director of National Intelligence is required to ensure that any subsequent amendment to the Army Field Manual “complies with the legal obligations of the United States” and thus “do not involve the use or threat of use of force.” In other words, any Army Field Manual revision has to be determined by the Defense Secretary to avoid the use of force – in addition to, of course, satisfying the baseline prohibition against cruel, inhuman, and degrading treatment. All together, this seems to close the door on the use of enhanced interrogation techniques. Or anything close.
That said, the fact that this document made it far enough to be circulated within the administration (see the New York Times on this) is concerning in and of itself. As Jack Goldsmith has noted, it reflects, among other obvious problems, a total lack of understanding the importance of international cooperation in the fight against al Qaeda and associated forces. The fact is that key foreign partners will not – and in fact will be legally unable to – cooperate with the United States if and when the United States is seen to be re-upping its torture program. Critical intelligence sharing, joint counterterrorism operations, and the willingness of foreign partners to transfer detainees to U.S. custody would all be put at risk.
Meanwhile, there are other parts of the draft EO that have not gotten much in the way of attention that also are worth examining, lest they get revised in another guise. These are the provisions that deal with detainee disposition. Specifically, the draft EO also includes a requirement that the Attorney General, in consultation with others, review and make recommendations to Presidential Policy Directive 14 (PPD-14). This is the Directive that implements Section 1022 of the FY 2012 National Defense Authorization Act; section 1022 requires the United States to hold in military detention those determined to be members or part of al Qaeda and associated forces that have participated in the planning or carrying out an attack or attempted attack against the United States or coalition forces. It exempts citizens and legal permanent residents arrested in the United States, but covers just about anyone else.
Individuals subject to the mandatory law of war requirements can then be moved into a variety of disposition options, including trial or transfer. But the mere fact of moving a terrorism detainee into military custody and then back again can be disruptive to ongoing investigations and impair critical counterterrorism efforts, including cooperation with key allies.
The underlying legislation recognizes this and includes the possibility of national security waivers. PPD-14, in turn, sets out a list of waivers that categorically apply. These cover situations in which, among other things, placing or transferring an individual to military custody will impair counterterrorism cooperation, is prohibited as a condition of extradition, will interfere with interrogation efforts, or will make it impossible to hold a joint trial. These are good national security reasons not to put detainees in military custody, even if temporarily. And hopefully any reviewers will recognize that fact.
It is also critical to note that nothing in PPD-14 precludes the United States government from moving a detainee into military custody, should the administration decide it is in the interest of national security to do so. Rather, it merely eliminates requirements that they must do so – thereby preserving maximum flexibility to act as the administration it sees fit. This kind of discretion is something that the Trump administration would presumably want to preserve.
Meanwhile, there is one other factual aspect of the draft EO that requires correction. The findings state that more than 30 percent of the detainees released from Guantanamo Bay “have returned to armed conflict.” But this figure combines the categories of detainees confirmed to have reengaged (18% ) and those suspected of reengagement (12%), based on Director of National Intelligence reporting. There is of course an important difference between the two categories. And when one looks at the figures since 2009, the percent that confirmed of reengaging as of July 2016 is at 5.6% (9 out of 122). Of course, any national security official wants that figure to be 0%. (And it’s possible that releases pursuant to the Periodic Review Board approval have in fact reached that goal or close; the figures include both court-ordered and discretionary transfers and don’t provide any break down by date.) But we should at least be clear about the facts.