Politics & Policy

The Draft Executive Order on Detention and Interrogation: Much Ado About Nothing

Military personnel at Guantanamo Bay’s Camp VI facility, March 2016. (Reuters photo: Lucas Jackson)
Trump is clear: Changes in law must be enacted through Congress.

One should not be surprised at the Media-Democrat complex’s attempt to manufacture a scandal over a draft executive order on the detention and interrogation of enemy combatants that the Trump White House refuses to avow. After all, nothing united the Left and fueled the Democratic political ascendancy of 2005 through 2009 like the anti-torture crusade. It had all the necessary elements of a successful campaign: outsized progressive indignation, the collusion of influential Republicans (especially John McCain, whose personal history imbued him with a moral authority that deflected the incoherence of his contentions), and an enfeebled Republican administration too exhausted and too worried about the press to defend itself effectively.

Factor in some of now-President Trump’s most outrageous statements on the campaign trail — such as suggesting that he would have the families of terrorists killed and would employ interrogation techniques harsher than waterboarding — and it became a ripe dead certainty that the Left would mobilize at the first hint of policy deliberations over the handling of captured terrorists.

For now, however, it is much ado about nothing.

At most, what we’re seeing is another iteration of a problem I alluded to Wednesday in addressing President Obama’s negotiations over the now-defunct Trans-Pacific Partnership: the need for confidential deliberations versus the determination of the press (and of Democrats during any GOP administration) that there shall be no secrets.

The Trump administration has not yet announced a policy on the detention and interrogation of enemy combatants. Critics should hold their fire until that happens. The draft executive order is just that, a draft — even if we assume, based on reported indications from unidentified administration leakers, that it is part of the discussion in Trump’s national-security team.

It is not just a commonplace — it is an inevitability that major policy decisions and the memoranda that memorialize them go through numerous iterations before they are finalized. The Left’s tired playbook depicts all Republican presidents as imbeciles and their advisers as amateur hour. Thus, much is being made of the fact that the draft executive order gets the date of the 9/11 attacks wrong, placing them a decade after the fact, on September 11, 2011. Put aside that this mistake is clearly a typo. (I’ve done it myself a number of times; plus, the date of the 9/11 attacks is rendered correctly on page 2 of the document.) The error also occurs in the very first paragraph (near the beginning, on the fifth line). To a sensible, objective analyst, that would suggest that wherever this draft comes from, it must be a document produced very early in the deliberation process. It must not have been perused by too many people before the New York Times “obtained” it.

There is no reason to doubt that the Trump administration is working on a thoroughgoing review of detention and interrogation policy. It was a big issue in the campaign, and it is a critical issue for national security. That said, it is anything but clear that the draft before us is representative of what the final product will look like. Senator McCain could do a lot of good — not that I’m holding my breath — if he took a chill pill and calmly advised people to await the final product before going Code Red.

Senator McCain could do a lot of good if he took a chill pill and calmly advised people to await the final product before going Code Red.

Secondly, even if the draft were representative of the new administration’s considered position, the tumult over it would be unwarranted. It explicitly acknowledges (again, on page 1) that Congress has enacted restrictions on interrogation techniques, codifying in federal statutory law a prohibition that confines tactics to those set forth in “the Army Filed [sic] Manual” — a prohibition that expressly forbids the use of “force.” The draft executive order asserts that this prohibition (inserted by Congress in the National Defense Authorization Act of 2016) “provides a significant statutory barrier to the resumption of the CIA interrogation program” — i.e., the controversial program in the post-9/11 period of the Bush administration.

All of Trump’s actual executive orders to date have taken pains to state that the president’s directives are operative only to the extent permissible by law. There is nothing in the draft order that indicates an intention to attempt to supersede congressional statutes.

President Trump may think our current interrogation law is foolish. And regardless of what one thinks of so-called enhanced techniques such as waterboarding (as it was fastidiously practiced by the CIA), I imagine most Americans believe we are foolish to publicize (i.e., tell the enemy) the full range of our interrogation tactics. Nevertheless, the draft indicates only that Trump might direct a “review” of: 1) military interrogation tactics, with the secretary of defense (in consultation with the attorney general) making any appropriate modifications “as consistent with the law”; and 2) intelligence needs, which would include recommendations to the president regarding (a) “whether to initiate a program of interrogation of high-value alien terrorists” and — significantly — (b) “any legislative proposals that would be necessary[.]”

That is, even if the draft does represent Trump’s thinking, the administration is acknowledging that everything must be done within the confines of the law, and that if the new president wants changes in interrogation law, he must seek Congress’s approval. Clearly, whatever Trump may think the law should be, this draft executive order conveys his understanding that he is relegated to what the law permits.

The administration is acknowledging that if the new president wants changes in interrogation law, he must seek Congress’s approval.

Finally, the other salient aspect of the draft executive order is detention, including the holding of alien enemy combatant jihadists at Guantanamo Bay and, potentially, at other foreign sites operated by the CIA. The issue of detention is obviously related to detention, but they are significantly different.

No matter what interrogation practices are authorized, we must have the legal power to detain enemy combatants under the laws of war — meaning that we can detain them indefinitely, without counsel or criminal charges, until the conclusion of hostilities.

One of the great detriments to national security has been the Obama administration’s politicization of detention and interrogation practice. President Obama encouraged the Bush-deranged Left in its caricature of Gitmo as a gulag, a symbol of torture and lawlessness. Of course, it was never anything of the kind — it is humane to a fault. But the politics of keeping his base energized induced Obama to mass-release from Gitmo anti-American terrorists who were certain to go back — and many of whom are known to have gone back — to the jihad.

Perhaps even worse, it incentivized the armed forces under Obama’s command to prioritize the killing of terrorists over their capture and interrogation for vital intelligence-gathering purposes. That is the perverse logic of the “humanitarian” campaign against the employment of law-of-war principles essential to our security: Obama did not want to take the political heat for his preference to treat captured terrorists like criminal defendants with Miranda protections; but he would not use Gitmo or a similar facility to detain them without trial and interrogate them (even under the gentle Army Field Manual standards) for as long as they provided useful intelligence. Killing was the best political option, even if it was the worst from intelligence and humanitarian standpoints.

There is no doubt that we need to make improvements in the law. For over a decade, I have been arguing for a National Security Court to impose a reasonable due process, overseen by federal judges, on the detention and interrogation of alien enemy combatants — and of the trial of those against whom war crimes can be proved. It should also be a priority to amend the badly out-of-date Authorization for the Use of Military Force — for a variety of reasons, not least the need to identify with clarity the enemy against whom Congress has authorized combat operations. By thoughtfully overhauling the AUMF, we would know precisely which terrorists are subject to law-of-war detention, and which do not fit the definition of “alien enemy combatant” and should thus be referred to the civilian justice system.

All that said, however, the Obama administration spent eight years undermining the legitimacy of law-of-war detention. To the contrary, it is perfectly lawful and imperative for our security. If we can read anything into the draft executive order, it is that President Trump is planning to proclaim that the nation remains at war, and that the enemy is to be treated like an enemy, not a defendant. That would be commendable.  

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