Sessions: Waterboarding is illegal and I oppose a blanket ban on Muslim visitors

Jeff Sessions: Wokest AG ever.

These two answers are getting buzz today because they contradict things Trump said during the campaign, but as Sessions himself notes, the “Muslim ban” proposal of winter 2015 was long ago watered down to call instead for close vetting of visitors from countries with a strong terrorist presence. Mike Pence later claimed that that would apply to Christian and Jewish visitors from those countries too, not just Muslims, in order to make the scrutiny as evenhanded as possible. The new “ban” isn’t a ban at all, in other words, and it’s geared at nationality, not religion. If today’s questioners wanted to challenge Sessions, they could have grilled him on what criteria he’d use to decide whether a particular country is of special concern when it comes to terrorism. Does, say, France have enough of a terrorist presence to justify close vetting of visitors? Instead, the hearing was reduced to Sessions making the basic point that of course avowed violent religious fanatics, i.e. jihadis, will be scrutinized and barred from entry even if most Muslims won’t. The test is whether a visitor can co-exist peacefully with America’s liberal values — although that too can be tricky in certain cases.

The waterboarding answer is more significant for the reason the Times notes, namely, that Sessions’s view of current law would seem to foreclose executive action by Trump to restore the practice. Congress has spoken, he says, and has declared waterboarding “improper and illegal.” Not much Trump can do about that, short of convincing 60 senators to reinstitute the practice, which is unlikely in the extreme. Or so the theory goes. The truth is a bit more complicated:

Congress overwhelmingly enacted a law [in 2015] that allowed American interrogators to use only those techniques authorized in the Army Field Manual, which does not include harsh coercive methods.

Trump administration lawyers could try to get around that prohibition by arguing that the president has broad constitutional power as commander in chief to decide how to interrogate prisoners and that Congress cannot tie his hands. That claim served as the foundation of the Bush administration’s torture program, even though many legal specialists later denounced it as going too far.

Mr. Trump could also order the Defense Department to revise the Army Field Manual to authorize harsher techniques. “If the order comes down the chain of command in the Pentagon to revise that document and add in an opening to use enhanced-interrogation techniques, what prospect would there be for resistance to that decision?” said Robert M. Chesney, a professor at the University of Texas School of Law. “That’s a moral and ethical and political choice.”

In other words, Sessions is right that waterboarding is illegal right now — but since the statute passed by Congress defers to the Army Field Manuel and the Army answers to the president, Trump could theoretically change the statute simply by having the Field Manual amended. Or, short of that, he could order waterboarding over Congress’s objections and hope that the Supreme Court strikes down Congress’s ban on the practice as an infringement on the president’s power as head of the military. If you want to read Sessions’s answer uncharitably, you could read it as slyly conditional — i.e. yes, waterboarding is “absolutely improper and illegal” right now because that’s the view of the current president, but as presidents change, so might the policy. I don’t think it’s worth worrying about, though. It sounds like “Mad Dog” Mattis already changed Trump’s mind about all this some time ago.