In his first month in office in 2009, former President Obama dismantled a Central Intelligence Agency (CIA) interrogation program and secret overseas prisons the George W. Bush administration put in place during the so-called Global War on Terror.
Eight years later, a draft executive order, reportedly from the Trump White House, could revive currently prohibited interrogation methods, which include waterboarding, and secret, "black site" prisons.
The three-page draft order, titled “Detention and Interrogation of Enemy Combatants,” calls for a policy review on whether the president should “reinstate a program of interrogation of high-value alien terrorists and whether such a program should include the use of detention facilities operated by” the CIA. The draft order also calls for the reopening of the Guantanamo Bay detention camp in Cuba to new prisoners, as well revoking the access of the International Committee of the Red Cross to all detainees in American custody.
Trump administration spokesman Sean Spicer and House Speaker Paul Ryan (R) of Wisconsin, denied on Wednesday the document was sent from the White House. Mr. Spicer said he “has no idea where it came from,” while Mr. Ryan told MSNBC it was written by “somebody who worked on the transition before, who's not in the Trump administration.” But two officials told Reuters that Mr. Trump is expected to sign this executive order in the next few days.
Trump’s signature could pave the way for a shift back to Bush-era interrogation practices, instituted in response to the 9/11 attacks. Supporters say these “dark” techniques, as former Vice President Dick Cheney once described them, produced critical intelligence on Al Qaeda. A Reuters/Ipsos poll taken in March 2016, shortly after terrorist attacks in San Bernardino, Calif., and in Europe showed nearly two-thirds of Americans say torture can be justified to extract information from suspected terrorists.
But in the decade or so since they were first put in place, critics say that there have been extensive reports on their legality, a public debate in Washington and among Americans, and international condemnation of these practices as torture.
“We’re not where we were in Sept. 2001. There is not the shock of an attack on the United States like 9/11,” says Alfred McCoy, a history professor at the University of Wisconsin, Madison, and the author of three books and numerous publications on torture. “The United States suffered enormous damage from that decade-long immersion in torture. Our international reputation was degraded. We had an incredibly divisive internal debate in the United States government and the public on the issue of torture.”
“I just don’t think we’re going to do it again,” he says. “We’ve experienced the damage. When it’s all said and done, I don’t think the leadership in the CIA, in the Defense Department, and in the military is going to let it happen again.”
But, he continues, the danger is still there. If the Trump administration weakens these restraints and restrictions, and the country suffers a terrorist attack, the road to bringing these techniques back has already been laid, says Dr. McCoy.
The draft of the executive order, reportedly sent to National Security Council policy staff members, according to The New York Times, calls for several actions. The order would authorize a review of interrogation techniques that officials could use on terrorism suspects. It would also keep open detention centers at the US naval in Guantanamo Bay and send new prisoners there. And it would revoke the access of the Red Cross to all detainees, as well as restrict interrogation methods to those in a US Army field manual.
In other words, the order would vacate two executive orders signed by Obama, and could restore interrogation tactics installed under the George W. Bush in the months and years after 9/11.
Before the 2001 terrorist attacks, official American policy in both Republican and Democratic administrations prohibited the use of physical pain and coercion and banned secret detentions, according to The New York Times.
But after the attacks, the Bush administration decided that the threat from Al Qaeda justified dropping those standards and working on “the dark side,” as Vice President Dick Cheney famously put it. The result was secret detentions at overseas “black sites” run by the C.I.A. There, interrogation teams tortured prisoners through extreme sleep deprivation, exposure to cold, forced nudity, confinement in coffinlike boxes, wall-slamming, chaining in painful stress positions and waterboarding, all of which administration lawyers claimed was lawful under a disputed legal theory.
Interventions by Congress and the Supreme Court, the Bush administration backed away from most of its extreme measures and transferred CIA detainees to the prison at Guantanamo.
The interrogation program and secret prisons also faced wide condemnation from the Senate, the CIA, and abroad.
Obama then used two executive orders to end these interrogation practices and close these secret prisons in countries that include Poland, Romania, and Afghanistan. But the then-president stopped short of outlawing these so-called enhanced interrogation techniques, says Mark Danner, a journalism professor and former New Yorker staff writer who has written extensively on torture. Instead, the former president just prohibited them.
“It takes it out of the realm of legality, and puts it into the realm of policy,” says Mr. Danner.
One of the executive orders, for example, was to end CIA prisons, grant the Red Cross access to all detainees, and limit interrogators to the Army Field Manual techniques. The other was to close Guantanamo.
Congress did codify some of these directives. In 2015, it enacted a statute that requires interrogators to rely on the Army Field Manual and that the Red Cross visit detainees, turning these directives into a matter of law.
But the draft order of the Trump administration appears to sidestep this statute. It makes no mention of international law.
“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 proscribed by US law,” reads the draft order first published by The Washington Post. “The detention, treatment interrogation and transfer of enemy combatants in the fight against radical Islamism by officers, employees, and other agents of the United States shall comply with all laws of the United States."
Lisa Hajjar, a sociology professor at the University of California at Santa Barbara, agrees Obama left the door open for Trump to reinterpret torture laws. She points the finger at the Obama administration’s failure or refusal to pursue accountability for the Bush administration’s interrogation methods.
The draft order and its implications do face opposition from within Washington. Sen. John McCain (R) of Arizona, House Speaker Paul Ryan, and Senate Majority Leader Mitch McConnell (R) of Kentucky, all rejected revival of these methods. Trump's Defense Secretary James Mattis has also said waterboarding is an in ineffective interrogation method . But Trump told ABC News on Wednesday that torture works, although he added he will defer to the judgment of Mr. Mattis and CIA Director Mike Pompeo.
But the order, and its apparent disregard for international law, also threatens the United States’ standing globally, says Dr. McCoy at Wisconsin.
"For over 100 years, since the international conference in the Hague in 1907, the United States has committed to building an international community governed by the rule of law. It’s one of the most distinct American contributions to the world order,” says McCoy. “There are risks here far beyond the issue of torture. If we don’t respect international law, how can we expect other great powers to do likewise.”