Wondering if we’ll be returning to the club of countries that torture prisoners? On Lawfare, Robert Chesney points out this will be more difficult than most imagine:
For now, though, I want to highlight a critical but often-overlooked point about what I view as the most important feature of EO 13491: Section 3(b)’s prohibition on the use of any interrogation method, by any agent of the U.S. government whether military, CIA, or otherwise, that is not among those methods listed in Army Field Manual 2-22.3. Waterboarding and other so-called Enhanced Interrogation Techniques are not part of the Field Manual, and section 3(b) has thus long been understood as a central instrument for barring CIA from using such methods (DOD already was subject to this same obligation via the McCain Amendment in the Detainee Treatment Act of 2005). By revoking EO 13491, then, some have assumed that the door would be opened not just a resumption of CIA interrogation in general but also to the use of the EITs (or worse). [Note: I am not suggesting CIA itself has any interest whatsoever in having such a role or authority, and I should emphasize that any such development would have to come about as a result of presidential directive expressly authorizing–and, indeed, compelling–the agency to follow such a course.]
But this overlooks a critical point: In the National Defense Authorization Act for Fiscal Year 2015, Congress and the Obama Administration converted the Field Manual compliance rule from a mere executive order into a statutory obligation, and thus placed it beyond the discretion of future presidents.
It was remarkable to me at the time that this did not get more attention. It certainly matters now. That said, the statute is by no means a complete obstacle to revival of the EITs.
Not that a President Trump necessarily wants to re-authorize torture – I firmly believe that no one, perhaps including himself, really knows how he feels on most issues. His willingness to lie – as well documented by the media – makes predicting Trump’s future moves impossible.
At least this would slow him down.
