‘Just when you thought it was safe to go back in the water’

Part 2 of 2

Last time, Church showed why the Army Field Manual provides the most effective protection against torture, and that President Obama’s Executive Order 13491 extended its reach to all U.S. interrogations, including those conducted by the CIA. But can Trump, with a pen stroke, sign a new order freeing the CIA from the manual’s restraints?


Certainly Trump could rescind President Obama’s order. But where would that leave Trump and Pompeo, who may have put the president up to it?

Senator John McCain, to the vast displeasure of George W. Bush, engrafted his Detainee Treatment Act (DTA) onto what became the 2006 National Defense Appropriations Act (NDAA.)  Most pertinently, the DTA ordained that any person held in custody by the Defense Department shall be interrogated only by techniques approved by the Army Field Manual. 

The CIA, however, was not covered by the DTA. But following completion by December 2014 of the Senate Intelligence Committee’s “Study of the [CIA’s] Detention and Interrogation,” and its publication of its executive summary, which depicted the horrific torture inflicted on captives by the CIA (our client, Abu Zubaydah, was featured in the summary, being mentioned more the 1,000 times), senators Dianne Feinstein and John McCain sponsored an amendment to the 2016 NDAA that took care of that omission. When signed by President Obama, the thusly amended NDAA codified the interrogation reforms of Executive Order 13491, so that the CIA must also interrogate only with techniques authorized by the field manual. 

No longer could the CIA be released from this requirement by a superseding executive order by Trump. Now, Trump and Pompeo would be required to persuade both houses of Congress to rescind that requirement, before Trump’s pen stroke would count for anything. 

Given his dwindling power (see below), I’m thinking that Trump may no longer be able to piece together a majority even in the House of Representatives, where Republicans outnumber Democrats 240 to 194 (with one vacancy) as a step toward returning our nation to torture. 

And the Senate would be a far heavier lift. Without even considering whether the Democrats might filibuster so the Republicans would need a 60 vote supermajority, I don’t believe Trump can even muster a majority in the Senate. Sen. McCain surely would vote nay, but who among the Republicans would back a Trump bill to bring back torture?

Consider these telltale signs that something very dire is afoot for Trump. He may no longer be able to hold onto his office. On Aug. 28, Benjamin Wittes and Jane Chong wrote on the blog Lawfare: “It’s Time: Congress Needs to Open a Formal Impeachment Inquiry.” 

Wittes, editor in chief of Lawfare and a Senior Fellow in Governance Studies at the prestigious Brookings Institution, is quite simply the wisest person I know in the national security world. Chong is Lawfare’s highly credentialed Deputy Managing Editor. 

They ask “whether given everything Trump has done, said, tweeted and indeed been since his inauguration, the House has a duty, as a body, to think about its obligations under the impeachment clauses of the Constitution — that is whether the House needs to authorize the Judiciary Committee to open a formal inquiry into possible impeachment.” 

They arrange his possible impeachable offenses into three baskets: his abuses of power, his failures of moral leadership and his abandonment of the basic duties of his office. Anyone who is so inclined could review a few months of news clippings and do a pretty good job of filling up those baskets. While doing that, they would do well to recall that, as the admirable Justice Joseph Story explained in 1833, impeachment is not limited to “crimes of a strictly legal character.”

Wittes’s name may be too unfamiliar to the mainstream to convince them that Trump’s in such trouble. If so, consider that Senate Majority Leader Mitch McConnell recently “mused about whether Mr. Trump will be in a position to lead the Republican Party into next year’s elections and beyond.” And take a look at the reply by Secretary of State Rex Tillerson when asked in an interview about Trump’s response to the violence in Charlottesville: “The President speaks for himself.” When’s the last time you heard a cabinet member wholly disavow remarks by this chief on a matter of such importance?

Despite Pompeo’s remarks in Aspen, I’m thinking that the Army Field Manual will remain the polestar for CIA interrogations, at least for now, whether he likes it or not.


Charles R. Church is a human rights lawyer living in Salisbury.