Leaked order, if enacted, could revive CIA 'black site' prisons

WASHINGTON — It contained crossed-out phrases and typos. It said that the Sept. 11 attacks occurred in 2011, rather than a decade earlier. It was clearly not meant for public consumption.

But the draft of a Trump administration executive order that spilled into public view early Wednesday — a document that raised the prospect of reviving CIA "black site" prisons like those where terrorism suspects were once detained and tortured — has the potential to further fracture a national security team already divided over one of the most controversial policies of the post-9/11 era.

The White House disclaimed the document, which leaked to The New York Times and other news organizations, but three administration officials said the White House had circulated it among National Security Council staff members for review Tuesday morning. And many of its proposals — which also include halting transfers out of the Guantánamo Bay prison and sending new detainees there, which President Barack Obama refused to do — echo years of Republican national security policy and President Donald Trump's own speeches.

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But Trump's most extreme campaign proposal for terrorism suspects — bringing back torture, which the draft order does not call for but hovers over in its direction to review reinstating a CIA interrogation program — has been disavowed by senior members of his team, most notably Defense Secretary James N. Mattis. Mattis has long opposed some of the aggressive interrogation methods used during President George W. Bush's administration, and in his recent confirmation hearing, he said that the military should use only interrogation methods contained in the Army Field Manuals.

At a Democratic caucus retreat on Wednesday, Sen. Mark Warner of Virginia, the top Democrat on the Intelligence Committee, told colleagues that both Mattis and Mike Pompeo, the newly installed CIA director, had told him they had no knowledge of the draft order before it became public, according to another senator present at the retreat.

For his part, Trump said Wednesday, as he had several times during the presidential campaign, that he thought torturing terrorism suspects was justified. But in an interview with ABC News, the president also said he would defer to Mattis and Pompeo.

"I will rely on Pompeo and Mattis and my group," Trump said. "And if they don't want to do, that's fine. If they do want to do, then I will work toward that end. I want to do everything within the bounds of what you're allowed to do legally. But do I feel it works? Absolutely, I feel it works."

Asked about the draft order during a media briefing Wednesday, Sean Spicer, the White House press secretary, said that it was "not a White House document" and that he had "no idea where it came from." He complained about "reports being published attributing documents to the White House that are not White House documents."

But the three administration officials familiar with the document, who discussed internal deliberations on the condition of anonymity, portrayed that account as false. They said the White House had circulated the draft order among national security staff members in the same way that a flurry of other pending executive orders had been distributed for review: with no warning and scant time to provide comments.

One of the officials said an email chain showed that at 8:41 a.m. on Jan. 24, a clerk had sent the draft order as an attachment to several National Security Council policy staff members, who forwarded it to others. The clerk works on the administrative staff of retired Lt. Gen. Keith Kellogg, the chief of staff and executive secretary of the National Security Council.

The subject line referred to the memo as Package 0048. Addressed to the council's legal, counterterrorism and defense units, the email said: "Please review the attached draft EO. Comment/concurrence due by 10 A.M. Thank you." Neither the email nor the draft order said who, or which office, had drafted the order.

Asked whether that sequence of events was accurate, a supervisor to the clerk referred a reporter to the White House press office. But Spicer did not respond to an email that laid out the draft order's movements through the White House bureaucracy, and that sought clarity about why he had said it was not a White House document.

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BuzzFeed reported later in the day that the draft order appeared to have been derived from one prepared in 2012 by legal and policy advisers to Mitt Romney, the Republican presidential nominee, that presented options on detainee policies. But the wording had been revised to account for subsequent legal and geopolitical developments and to add explicit references to radical Islam.

The apparent internal debate over the language and substance of the executive order reflects a political struggle, more than a decade old, over the proper rules for U.S. detention and interrogation.

Until the Sept. 11 terrorist attacks, official policy in both Republican and Democratic administrations prohibited the use of physical pain and coercion in interrogations and banned secret detention. The United States regularly condemned other countries for using such methods.

But after the attacks, the Bush administration decided that the threat from al-Qaida justified dropping those standards and working on "the dark side," as Vice President Dick Cheney famously put it.

The result was secret detentions at overseas "black sites" run by the CIA. There, interrogation teams tortured prisoners through extreme sleep deprivation, exposure to cold, forced nudity, confinement in coffinlike boxes, wall-slamming, chaining in painful stress positions and waterboarding, all of which administration lawyers claimed was lawful under a disputed legal theory.

After interventions by Congress and the Supreme Court, the Bush administration backed away from most of its extreme measures and transferred CIA detainees to the prison at Guantánamo. Obama formally closed the unused black sites and shut down the program, requiring all government interrogators to adhere to the Army Field Manuals.

Obama's decision drew recurring criticism from hawkish Republicans, who said it put the United States at greater risk of terrorist attacks. Many, including Trump, also attacked him for declining to characterize the enemy in religious terms. This sentiment was reflected in the draft executive order, which said that in the "fight against radical Islam, the United States has refrained from exercising certain authorities critical to its defense."

From there, it noted Obama's decision to ban CIA interrogation techniques and his efforts to shutter the Guantánamo prison — a pledge he was not able to carry out because of opposition from Republicans.

Still, just as detainee transfer restrictions enacted by Congress blocked Obama from carrying out his plan to close the prison, anti-torture laws enacted by Congress — including a 2015 act that requires adherence to Army Field Manual interrogation techniques and gives the International Committee of the Red Cross access to all wartime detainees — pose obstacles to any effort by Trump to return to using torture.

In a nod to those laws, the draft order would rescind Obama's executive branch directives, like those barring the CIA from operating prisons, but it would not immediately reinstate the CIA detention and interrogation program. Instead, it would direct executive branch officials to review detention and interrogation policy and make recommendations, including on whether to propose changes to the law.

During his recent confirmation hearing, Pompeo was unequivocal when asked whether he would comply with an order by Trump to reinstate the CIA's brutal interrogation methods.

"Absolutely not," he answered. "Moreover, I can't imagine that I would be asked that."

But in written answers to the committee after the hearing, Pompeo did not rule out the possibility of asking Congress to relax interrogation limits "if experts believed current law was an impediment to gathering vital intelligence to protect the country."

On Wednesday, some Republicans and many Democrats reacted angrily to the draft executive order, saying they would not stand for any attempt to circumvent or weaken laws against torture.

"Even the suggestion that we may bring back these discredited policies does serious damage to our international standing and will make our allies in the fight against terror wary about cooperating with us," said Rep. Adam B. Schiff of California, the top Democrat on the House Intelligence Committee. "I will do everything in my power to ensure that these grievous mistakes of the past are never repeated."

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Reporting was contributed by Jonathan Martin, Matthew Rosenberg, David E. Sanger, Eric Schmitt and Scott Shane.