New draft executive order by Trump would keep Gitmo open, may lead to reopening "black sites" for interrogation

I wonder who leaked this. There can’t be many people who have seen it thus far, which suggests the source is fairly high up the chain. Maybe the White House leaked it as a trial balloon, to see how the public would react? Or maybe they leaked it in the expectation that the media would overreact, which is always helpful to Trump.

All the key planks of the Bush counterterror strategy are in play here — Gitmo, “black sites,” interrogation methods, military commissions for detainees. What’s interesting about the order is that, with the exception of keeping Gitmo open, it doesn’t directly order the reinstatement of anything. What it calls for are reviews of current practices by the Secretary of Defense, the Attorney General, and the Director of National Intelligence followed by recommendations for reform. That is, depending on what Mattis, Sessions, Pompeo, and Dan Coats come back with, Trump may end up largely maintaining the Obama status quo. For the moment, the order is really just a way for him to publicly repudiate some of the core assumptions of Obama’s counterterror approach, that “black sites” and enhanced interrogation are necessarily improper and un-American. That even applies to terminology: Read the order yourself (it’s short and admirably clear) and you’ll see that phrases like “global war on terrorism” have been struck and replaced by “fight against radical Islamism.” It’s a break with Obama’s big-picture view of the conflict, but might not end up being a major break with how America conducts itself.

The Trump administration is preparing a sweeping executive order that would clear the way for the C.I.A. to reopen overseas “black site” prisons, like those where it detained and tortured terrorism suspects before former President Barack Obama shut them down…

If Mr. Trump signs the draft order, he would also revoke Mr. Obama’s directive to give the International Committee of the Red Cross access to all detainees in American custody. That would be another step toward reopening secret prisons outside of the normal wartime rules established by the Geneva Conventions, although statutory obstacles would remain.

Mr. Obama tried to close the prison at Guantánamo Bay, Cuba, and refused to send new detainees there, but the draft order directs the Pentagon to continue using the site “for the detention and trial of newly captured” detainees — including not just more people suspected of being members of Al Qaeda or the Taliban, like the 41 remaining detainees, but also Islamic State detainees. It does not address legal problems that might raise…

Another core national security legal principle for Mr. Obama was to use civilian courts, not military commissions, whenever possible in terrorism cases — and to exclusively use civilian law enforcement agencies and procedures, not the military, to handle cases arising on domestic soil. The draft order also signals that the Trump administration may shift that approach as well.

Here’s the section in the order that governs interrogation practices. Note which cabinet member is in charge of formulating the recommendations:

A law passed by Congress in 2015 requires the CIA to follow the Army Field Manual in its own interrogation methods, which makes the Manual’s guidelines verrrry important in setting national policy. And who’s in charge of approving the Manual? Why, Defense Secretary James Mattis — who told Trump months ago that he believes non-coercive interrogation is more effective in extracting information from detainees than waterboarding is. I don’t think the Field Manual will change much under Mattis. In fact, here’s something floating across Twitter as I write this:

Hmmm. Back to the order — here’s the section on CIA “black sites”:

I’m not sure if “black sites” came up at Mike Pompeo’s confirmation hearing, but as a congressman he opposed Obama’s decision to close the sites in 2009. Enhanced interrogation did come up, though, and Pompeo insisted that he wouldn’t follow orders to bring back those practices unless they had been ratified by Congress. What’s the point of setting up a “black site” if you’re bound by the Army Field Manual in how you interrogate? This is what I mean about the order seemingly being aimed more at Obama’s assumptions than about changing his actual practices. Trump’s showing that he’ll at least consider fighting a savage, remorseless enemy with every weapon available — but whether he actually ends up doing so, well, the administration will get back to you.

One other note about the order: It makes a point of mentioning, more than once, that there’s only so much Trump can do within the bounds of the law. There’s a section near the end, for instance, that affirms that no one in U.S. custody shall be subjected to “torture or cruel, inhuman, or degrading treatment or punishment, as proscribed by U.S. law.” If you’re not impressed by that on the theory that “torture” can be defined as strictly or as loosely as you like to make an interrogation practice legal, note that the explanatory statement that precedes the order makes a point of saying that the NDAA that Congress passed in 2015, which made the Army Field Manual the law of the land on interrogations, “provides a significant statutory barrier to the resumption of the CIA interrogation program.” That language was probably included to reassure Trump’s critics in Congress but it can also be read as a nudge to his fans not to get their hopes up too much. If he doesn’t bring back waterboarding, that’s because his hands are tied by federal statute. Adjust your expectations accordingly.

We’ll see if he signs the order. Given that it doesn’t commit him to much beyond keeping Gitmo open, why wouldn’t he?

Update: Sean Spicer was asked about the draft order at today’s briefing and said that it isn’t a White House document. Does that mean he’s calling it fake news? Nah. Probably it means this:

It’s not a White House document until Trump signs it. It may be a Defense Department document, though, albeit still in draft.