The Trump administration has put together a draft executive order to review bringing back waterboarding and the CIA secret prisons known as “black sites.” It’s already drawing howls of protest from leading Democrats—and some Republicans—and skepticism from former intelligence officers who say CIA employees were burned once by carrying out orders later deemed illegal.
“The President can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America,” said Republican Senator John McCain, himself a victim of torture at the hands of his Vietnamese captors.
“We haven’t engaged in waterboarding since 2004…We haven’t used black sites since President Bush emptied the black sites, and we’ve somehow managed to keep our country safe,” said former CIA chief of staff Jeremy Bash, in answer to a Daily Beast question at the Center for American Progress.
“With respect to torture, that’s banned,” Senate Republican Conference Chair John Thune told reporters Wednesday afternoon. “We view that to be a matter of settled law.”
The Trump administration is denying the draft order was produced by the White House.
“It is not a White House document,” White House spokesman Sean Spicer said of the draft order. “I have no idea where it came from.”
But Congressional staff who have viewed the document believe it is real and President Donald Trump said Wednesday that torture “absolutely works,” in comments to ABC News. He added that a senior intelligence official had told him so in the past 24 hours.
That’s a turnaround from his comments after first meeting his now-Defense Secretary James Mattis, who is against anything that goes beyond the Army Field Manual. “I will rely on (CIA Director Mike) Pompeo and Mattis and my group. And if they don’t want to do, that’s fine. If they do wanna do, then I will work toward that end. I want to do everything within the bounds of what you’re allowed to do legally,” Trump said.
The draft executive order circulating on Capitol Hill would overturn two 2009 Obama administration orders to end CIA black site prisons, limit interrogation methods to the U.S. Army Field Manual, and give the International Committee of the Red Cross access to all detainees. The order would launch a review of detention and interrogation practices, opening the door to returning to some form of enhanced interrogation and secret detention facilities.
The draft order, first obtained by The New York Times, would resurrect a 2007 Bush executive order that allowed CIA employees to use methods not specifically listed under international law as war crimes, such as sleep deprivation. (The draft order was described to The Daily Beast by a person who had reviewed it.) But that contradicts a 2015 amendment to the National Defense Authorization Act requiring all federal agencies to follow the practices listed in the Army Field Manual, which limited those practices. So it’s not clear how a Trump administration could overturn that.
The draft order would also overturn an Obama-era edict to eventually close the prison at Guantanamo Bay and transfer the detainees elsewhere. It’s a move that puzzled former administration officials. “On the Gitmo piece, it’s not surprising (as it) seems to halt transfers,” one told The Daily Beast. But “there are only five remaining detainees we would have transferred,” out of the 41 left in detention.
As for the review of detention and interrogation tactics, the official points out that the Obama administration carried out a review of those practices that was just declassified—and “military and intelligence career officials agreed that the Army field manual was the right way to go, and anything else is now barred by statute.” The official spoke of condition of anonymity to describe high level discussions.
At his confirmation hearing, new CIA director Mike Pompeo said he would “absolutely not” comply with any order to resume the use of harsh interrogation techniques like waterboarding, considered torture under international law. But in written answers to questions by the Senate intelligence committee, he said if confirmed, he would ask CIA experts if the manual is “an impediment to gathering vital intelligence to protect the country,” and if so, he may ask for changes. The executive order gives him the green light to do that. He stressed he’d make sure those changes stay “within the law.”
The Army Field Manual does not include waterboarding or other forms of enhanced interrogation, and requires that it be updated in a way that “complies with the legal obligations of the United States and reflects current, evidence-based, best practices for interrogation that are designed to elicit reliable and voluntary statements and do not involve the use or threat of force,” according to a statement from McCain. Any changes to the manual must be made public 30 days before they take effect.
McCain, who together with California Democrat Sen. Dianne Feinstein, championed a mammoth Senate Intelligence report on the CIA’s detention program, said Pompeo had assured him in private conversations as well as the hearing that he would comply with the current law—adding that Defense Secretary James Mattis did as well.
“The reopening of black sites, the re-examination of whether we should go back to EITs like waterboarding or some other form …costs us relationships with allies who won’t want to cooperate with us if they believe that may lead to the repopulating of Guantanamo or if someone they help us…detain will be sent to a black site,” Democrat Rep. Adam Schiff said in answer to The Daily Beast, at a Center for American Progress event together with former CIA chief of staff Bash.
“I have spoken this morning with CIA Director Pompeo and Secretary of Defense Mattis and reiterated that any attempt by this Administration to restart torture is absolutely unacceptable, and I will strongly oppose it,” added Democratic Sen. Mark Warner of Virginia, Vice Chair of the Senate intelligence committee.
The draft order would also keep the International Committee of the Red Cross from visiting detainees and delivering confidential reports to U.S. officials of what they see and hear—a practice that U.S. commanders tell The Daily Beast they learned to appreciate as one of their best defenses against any abuse of detainees in their custody.
“We are the early warning system when it comes to violations of international humanitarian law,” said Dominick Stillhart, director of operations for the ICRC in an interview. “As we saw Abu Ghreib, the typical example. Had they listened to us earlier, they could have avoided what was a huge public relations disaster.” U.S. military commanders told The Daily Beast that the ICRC had reported to them of the abuse of prisoners at Abu Ghreib outside of Baghdad during the U.S. occupation of Iraq. No one believed the Red Cross, until photographs of the abuse triggered a later investigation. So now commanders welcome the ICRC’s visits.
Pompeo, a former member of the House intelligence committee, has previously denounced the Obama administration’s revocation of enhanced interrogation practices – which included waterboarding, ice baths, sleep deprivation and even a few cases of rectal forced feeding, according to the Senate intelligence committee report.
“President Obama has continually refused to take the war on radical Islamic terrorism seriously—from ending our interrogation program in 2009 to trying to close Guantanamo Bay,” the Kansas Republican said in a 2014 statement.
Former CIA operators and senior officials have both said agency employees would be unlikely to want to get back into the business of such practices, because some were investigated by the Obama Justice Department for carrying out practices they were told were legal.
One former CIA employee who carried out the controversial practices, civilian contractor James Mitchell, said this controversy could—and should—start a national conversation about how far an interrogator should be allowed to go in the case of a “ticking time bomb” situation where officers know the person they have in custody is aware of an imminent violent attack. Mitchell is still facing a lawsuit by the ACLU for his part in the program.
“My chief complaint about the manual is not that it wouldn’t work on 80-90% of the people you’d get on the battlefield, but when you’re dealing with the senior people, if he’s hardened and he’s willing to hold out,” said Mitchell, who interrogated and waterboarded—9/11 mastermind Khalid Sheikh Mohammed. ‘The point I would make to the president in a situation where you have credible intel that there is going to be another attack, and you have that person in custody, you have to be able to go beyond the moral high ground.” He advocates coming up with something that goes beyond the army field manual, but not a return to Bush era tactics.
Black sites were as horrible as the name implies. In one infamous prison in Afghanistan called Cobalt, also referred to as the Salt Pit, nude prisoners were held together, and paraded around to humiliate them. Detainees were hosed down while shackled naked, and placed in rooms with temperatures as low as 59 degrees Fahrenheit, with loud music playing constantly.
The CIA was alerted of allegations that anal exams at Cobalt were conducted with “excessive force,” but there are no records of anyone being punished. Agency records said that one of the detainees housed at Cobalt, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.
Another prisoner, Gul Rahman, died apparently from hypothermia after being locked up without pants on in a cold room, after CIA officers had put a hood on him, slapped him, and dragged in the dirt.
"So-called ‘black sites’ are illegal, and have been explicitly so since the Supreme Court’s decision in Hamdan v. Rumsfeld," five Democratic members of the House Judiciary Committee said in a joint statement. "Any attempt to reopen these facilities would open our intelligence and military personnel to prosecution for war crimes under Common Article 3 of the Geneva Conventions."
This story has been updated to add comments from President Trump, the White House spokesman, the ICRC, and several lawmakers, as well as background information on the CIA detention program. With additional reporting by Tim Mak.