Earlier today, the New York Times published a 3-page draft of an executive order, allegedly penned by the Trump administration, entitled “Detention and Interrogation of Enemy Combatants.” According to the NYT, which “obtained” the document from an anonymous source, the executive order seeks to, among other things, reopen overseas CIA “black site” prisons that Obama ordered closed in 2009.
More specifically, the draft order would revoke two executive orders about detainees that Obama issued in January 2009, shortly after his inauguration. One was 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.
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 alleged draft executive order also contemplates a return to pre-Obama policies that directed enemy combatants, even those apprehended on American soil, to be tried by military tribunals rather than civilian courts.
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.
All that said, shortly after the NYT’s published the article, Sean Spicer denied it’s authenticity at his daily White House Press Briefing saying, “it is not a White House document. I don’t know where it came from or where it originated.”
Of course, Trump’s nominee for CIA director, Mike Pompeo, made headlines a few weeks back when he seemingly split with Trump in saying he would refuse any order from the White House to restart the CIA’s use of enhanced interrogation tactics. Per CNN:
Rep. Mike Pompeo, Trump’s nominee for CIA director, was asked by Sen. Dianne Feinstein, D-California, if he would — if ordered by President-elect Trump — restart the CIA’s use of enhanced interrogation tactics the that fall outside of army field manual.
“Absolutely not,” Pompeo responded. “Moreover, I can’t imagine I would be asked that by the President-elect.”
Later in the hearing, Pompeo was asked by Sen. Martin Heinrich of New Mexico if he would commit to complying with the law and acknowledge that the CIA is out of the enhanced interrogation business.
“Yes, you have my full commitment,” Pompeo said.
A sign of what’s yet to come from the Trump administration or just more ‘fake news’? We’ll let you decide.