The Trump White House appears to have backed off for now on its consideration of reopening overseas “black site” prisons, where the CIA once tortured terrorism suspects, after a leaked draft executive order prompted bipartisan pushback from Congress and Cabinet officials.
On Thursday, the White House circulated among National Security Council staff members a revised version of the draft order on detainees that deleted language contemplating a revival of the CIA prisons, according to several officials familiar with its contents.
The draft order retains other parts of the original that focus on making greater use of the military’s Guantánamo Bay prison, which the Obama administration had tried to close. Those sections, reflecting repeated vows from President Donald Trump, include a call to bring newly captured terrorism detainees there and to freeze plans for any more transfers.
After news outlets reported details of the original draft on Jan. 25, lawmakers erupted in outrage, and both the defense secretary, Jim Mattis, and the CIA director, Mike Pompeo, disavowed any prior knowledge of the contemplated order.
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Elisa Massimino, president of Human Rights First, who had been among those who criticized the original draft, praised the revisions.
“It sounds like a smart reaction to the reaction to the leaked draft,” she said. “Transparency is a good corrective to overreach, and it provides the opportunity for more careful consideration of the broader implications of an order like this.”
In addition to the change on CIA prisons, the revised draft, unlike the original, would not revive a 2007 executive order issued by President George W. Bush, and later rescinded by President Barack Obama, that laid out a limited understanding of which torture techniques count as war crimes under the Geneva Conventions. Such a move would reduce the legal risk to interrogators who employ harsh tactics not on that list, like prolonged sleep deprivation.
The revised draft would also not revoke two executive orders governing detainees that Obama issued in January 2009, as the original would have. The first bars the CIA from operating prisons and requires all interrogators to adhere to techniques approved in the Army Field Manual. The other was Obama’s ill-fated directive to close the Guantánamo prison within a year.
However, the revised draft is said to have a provision asserting that all contradictory sections of previous orders are revoked, which would implicitly repeal the part of Obama’s Guantánamo order that declared an intention to close the prison by the long-missed deadline.
The revised draft was circulated inside the National Security Council on Thursday, with a deadline for concurring or providing comment by Friday, one official said. The official said the draft had been held much more closely than the original one had been, apparently to prevent further leaks.
The White House had distributed its original draft executive order on detainees in an email to council staff members at 8:41 a.m. Jan. 24, giving them until 10 that morning to provide any comment. It was one of at least five significant draft orders distributed to them at the same time and with the same quick deadline, two of which Trump signed in the next few days.
The staff members urged the White House to slow down and get input from affected agencies and departments. They forwarded the email with the draft executive order on detainees to other officials in the government, who provided it to still other people, until it was leaked. The text of the original draft was first reported by The New York Times on Jan. 25.
In response to the news reports, White House press secretary Sean Spicer falsely said that the draft was not a “White House document.” After The Times then reported details about when and how the White House had circulated it, Spicer said that it had not been “derived from White House sources” and suggested that its origins traced to input provided to the Trump transition effort.
As BuzzFeed reported, the Trump draft order had lifted verbatim sections from a draft order written in 2012 by policy advisers to the Mitt Romney campaign. But the language in the Trump White House version had been revised, including to take account of subsequent legal and geopolitical developments and to substitute terms like “fight against radical Islamism” for “global war on terrorism.”
By Jan. 27, Trump foreshadowed that his flirtation with reviving a CIA interrogation program had come to an end, at least for the time being.
At a news conference, Trump said that while he personally supported waterboarding and thought torture worked, Mattis, who opposes torture, “will override because I’m giving him that power.”