Trump Poised to Lift Ban on C.I.A. ‘Black Site’ Prisons

Trump Poised to Lift Ban on C.I.A. ‘Black Site’ Prisons

CHARLIE SAVAGE   JAN. 25, 2017

https://www.nytimes.com/2017/01/25/us/politics/cia-detainee-prisons.html?smprod=nytcore-ipad&smid=nytcore-ipad-share&_r=0

WASHINGTON — 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.

President Trump’s three-page draft order, titled “Detention and Interrogation of Enemy Combatants” and obtained by The New York Times, would also undo many of the other restrictions on handling detainees that Mr. Obama put in place in response to policies of the George W. Bush administration.

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.

The draft order does not direct any immediate reopening of C.I.A. prisons or revival of torture tactics, which are now banned by statute. But it sets up high-level policy reviews to make further recommendations in both areas to Mr. Trump, who vowed during the campaign to bring back waterboarding and a “hell of a lot worse” — not only because “torture works,” but because even “if it doesn’t work, they deserve it anyway.”

Elisa Massimino, the director of Human Rights First, denounced the draft order as “flirting with a return to the ‘enhanced interrogation program’ and the environment that gave rise to it.” She noted that numerous retired military leaders have rejected torture as “illegal, immoral and damaging to national security,” and she said that many of Mr. Trump’s cabinet nominees had seemed to share that view in their confirmation testimony.

“It would be surprising and extremely troubling if the national security cabinet officials were to acquiesce in an order like that after the assurances that they gave in their confirmation hearings,” she said.

A White House spokesman did not immediately respond to an email inquiring about the draft order, including when Mr. Trump may intend to sign it. But the order was accompanied by a one-page statement that criticized the Obama administration for having “refrained from exercising certain authorities” about detainees it said were critical to defending the country from “radical Islamism.”

Specifically, the draft order would revoke two executive orders about detainees that Mr. Obama issued in January 2009, shortly after his inauguration. One was Mr. Obama’s directive to close the Guantánamo prison and the other was his directive to end C.I.A. prisons, grant Red Cross access to all detainees and limit interrogators to the Army Field Manual techniques.

In their place, Mr. Trump’s draft order would resurrect a 2007 executive order issued by President Bush. It responded to a 2006 Supreme Court ruling about the Geneva Conventions that had put C.I.A. interrogators at risk of prosecution for war crimes, leading to a temporary halt of the agency’s “enhanced” interrogations program.

Mr. Bush’s 2007 order enabled the agency to resume a form of the program by specifically listing what sorts of prisoner abuses counted as war crimes. That made it safe for interrogators to use other tactics, like extended sleep deprivation, that were not on the list. Mr. Obama revoked that order as part of his 2009 overhaul of detention legal policy.

One of the Obama orders Mr. Trump’s draft order would revoke also limited interrogators to using techniques listed in the Army Field Manual. But in 2015, Congress enacted a statute locking down that rule as a matter of law, as well as a requirement to let the Red Cross visit detainees. Those limits would remain in place for the time being.

Still, the draft order says high-level Trump administration officials should conduct several reviews and make recommendations to Mr. Trump. One was whether to change the field manual, to the extent permitted by law. Another was “whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States” by the C.I.A., including any “legislative proposals” necessary to permit the resumption of such a program.

It was not clear whether the C.I.A. would be enthusiastic about resuming a role in detaining and interrogating terrorism suspects after its scorching experience over the past decade. In written answers to questions by the Senate Intelligence Committee, Mr. Trump’s C.I.A. director, Mike Pompeo, said he would review whether a rewrite of the field manual was needed and left the door open to seeking a change in the law “if experts believed current law was an impediment to gathering vital intelligence to protect the country.”

Mr. Trump’s order says no detainee should be tortured or otherwise subjected to cruel, inhuman or degrading treatment “as prescribed by U.S. law,” but it makes no mention of international law commitments binding the United States to adhere to humane standards even if Congress were to relax domestic legal limits on interrogations, such as the Convention Against Torture or the Geneva Conventions.

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.

In 2012, after Congress enacted a statute mandating that the military initially take custody of all foreign Qaeda suspects, Mr. Obama issued a directive that pre-emptively waived that rule for most domestic circumstances, such as if the F.B.I. had arrested the suspect and was already in the process of an interrogation.

But Mr. Trump’s draft order calls for the attorney general, in consultation with other national-security officials, to review that directive and recommend modifications to it within 120 days.

Many Republicans — including Senator Jeff Sessions, Mr. Trump’s attorney general nominee — criticized the Obama administration’s approach as weak, even though the civilian court system has regularly convicted terrorists at trial while the military commissions system has proved to be dysfunctional. During the campaign, Mr. Trump said he would prefer to prosecute terrorism suspects at Guantánamo — including American citizens, although the law currently limits the commissions system to foreign defendants.

Against that backdrop, Mr. Trump’s draft order would direct Defense Secretary James N. Mattis, along with the attorney general and the director of national intelligence, to “review the military commissions system and recommend to the president how best to employ the system going forward to provide for the swift and just trial and punishment of unlawful enemy combatants detained in the armed conflict with violent Islamist extremists.”

Tom Malinowski, who was assistant secretary of state for human rights in the Obama administration, said the draft order showed that everyone who thought the office of the presidency or the advice of cabinet secretaries like Mr. Mattis would temper Mr. Trump “is being shown wrong again.”

“He’ll listen to his worst instincts over his best advisers unless restrained by law,” Mr. Malinowski said.