Days after Donald Trump took office, the New York Times and Washington Post obtained a copy of a draft executive order aimed at reopening CIA “black site” prisons and reauthorizing the set of torture techniques approved by the Bush administration in the aftermath of 9/11.
While the draft order doesn’t explicitly give the go-ahead for either new black sites or torture, it would order a “review” of detention and interrogation policy, with the potential of reversing some of the modest restrictions put in place by the Obama administration.
The order also contains language about keeping the prison at Guantánamo open, halting the transfer of any detainees out of the facility and possibly admitting new ones, and continuing military tribunals for prisoners sent there.
The order, which has not yet been signed, certainly fits with Trump’s militaristic campaign rhetoric and his assertion that “torture works…[and] if it doesn’t work, they deserve it anyway.”
Newly confirmed CIA director Mike Pompeo originally said he would be “open” to modifying existing laws to allow waterboarding and other forms of torture. But when asked again during his confirmation hearings whether he would reinstate the enhanced interrogation program, he replied, “Absolutely not.”
Meanwhile, the CIA’s new Deputy Director Gina Haspel actually ran a black site — a secret prison in Thailand where some of the most brutal torture from the early days of the “war on terror: took place. Haspel was also involved in the destruction of videotapes documenting CIA interrogations.
***
The appointments of Pompeo and Haspel are disturbing. But there are important reasons why the CIA might not be so keen to restart its torture program.
CIA documents obtained during the Senate Intelligence Committee’s hearing on Bush-era torture give a glimpse into how the program was actually run.
Although only a small portion of the report is declassified, it’s clear that detaining large numbers of prisoners proved to be a logistical nightmare for the CIA. This isn’t surprising given that the agency’s strategy for most of its existence was to outsource detention and torture to the local police or military of undemocratic regimes.
The declassified portions of the Torture Report reveal prison facilities with shoddy record-keeping or no prisoner records at all, detainees placed in stress positions and then forgotten about, and CIA officers routinely going beyond the list of approved interrogation techniques.
And while the torture program destroyed the lives and bodies of countless prisoners, it netted very little actionable intelligence and could not be shown to have stopped a single imminent terrorist attack on the US
While plenty of CIA officers may have been enthusiastic about the program in the immediate aftermath of 9/11, the end result was a PR disaster with serious potential legal ramifications and no significant intelligence payoff.
During the Obama administration, the agency shifted tactics: instead of capturing and detaining suspected terrorists, it simply killed them with drone strikes and Special Forces operations. It’s not clear the agency or its military colleagues have any interest in changing this strategy.
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There’s another reason some people in the intelligence community may be eager to distance themselves from Trump. His constant and enthusiastic use of the word “torture” threatens to blow a hole in the Orwellian legal logic that the CIA and the Bush administration used to justify torture in the first place.
Since torture is illegal under US and international law, Bush administration lawyers borrowed a strategy from a torture-happy ally Israel: They created a category called “enhanced interrogation techniques” and declared by fiat that these techniques weren’t torture. The US does not practice torture, the logic went, but these techniques are not-torture and therefore legal.
Former CIA Director Michael Hayden used exactly this twisted logic recently in an editorial criticizing Trump and arguing that the draft executive order was “political theater.”
There already seems to be significant dissatisfaction with Trump within the State Department, with over 900 career foreign service officers signing an informal dissent memo on Trump’s refugee ban.
Shortly after the draft order hit the press, White House press secretary Sean Spicer stepped in to insist it was “not a White House document” and that he had “no idea where it came from.” Given that the Trump administration is currently leaking like a sieve, it’s not clear if this was simply an attempt to save face.
It’s also not clear yet whether Trump’s wildest Jack Bauer fantasies will become national policy. But however the administration decides to continue the “war on terror,” it must be opposed.
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