Annals of the Trump Administration #1: The Law of Interrogation

The transition to a Trump Administration is now underway. Among many other things, this likely will entail an effort to identify various executive orders issued by President Obama that President Trump will repeal or modify soon after the inauguration. And given candidate Trump's repeated endorsements of waterboarding or worse, it seems very likely that sometime next January we'll see action repealing President Obama's executive order 13491 ("Ensuring Lawful Interrogation"), accompanied by renewed talk of taking the gloves off when it comes to interrogation.

There is a lot to say about this topic in general, and I hope to come back it with more soon. 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. I'll explain that below, after first showing the full text of the relevant provision.

SEC. 1045. LIMITATION ON INTERROGATION TECHNIQUES.

(a) LIMITATION ON INTERROGATION TECHNIQUES TO THOSE IN THE ARMY FIELD MANUAL.—

… (2) RESTRICTION.—

(A) IN GENERAL.—An individual described in subparagraph (B) shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual 2–22.3.

(B) INDIVIDUAL DESCRIBED.—An individual described in this subparagraph is an individual who is— (i) in the custody or under the effective control of an officer, employee, or other agent of the United States Government; or (ii) detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict.

(3) IMPLEMENTATION.—Interrogation techniques, approaches, and treatments described in Army Field Manual 2–22.3 shall be implemented strictly in accord with the principles, processes, conditions, and limitations prescribed by Army Field Manual 2–22.3.

(4) AGENCIES OTHER THAN THE DEPARTMENT OF DEFENSE.— If a process required by Army Field Manual 2–22.3, such as a requirement of approval by a specified Department of Defense official, is inapposite to a department or an agency other than the Department of Defense, the head of such department or agency shall ensure that a process that is substantially equivalent to the process prescribed by Army Field Manual 2–22.3 for the Department of Defense is utilized by all officers, employees, or other agents of such department or agency.

(5) INTERROGATION BY FEDERAL LAW ENFORCEMENT.—The limitations in this subsection shall not apply to officers, employees, or agents of the Federal Bureau of Investigation, the Department of Homeland Security, or other Federal law enforcement entities.

(6) UPDATE OF THE ARMY FIELD MANUAL.—

(A) REQUIREMENT TO UPDATE.—

(i) IN GENERAL.—Not sooner than three years after the date of the enactment of this Act, and once every three years thereafter, the Secretary of Defense, in consultation with the Attorney General, the Director of the Federal Bureau of Investigation, and the Director of National Intelligence, shall complete a thorough review of Army Field Manual 2–22.3, and revise Army Field Manual 2–22.3, as necessary to ensure that Army Field Manual 2–22.3 complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.

(ii) AVAILABILITY TO THE PUBLIC.—Army Field Manual 2–22.3 shall remain available to the public and any revisions to the Army Field Manual 2–22.3 adopted by the Secretary of Defense shall be made available to the public 30 days prior to the date the revisions take effect.

(B) REPORT ON BEST PRACTICES OF INTERROGATIONS.—

(i) REQUIREMENT FOR REPORT.—Not later than 120 days after the date of the enactment of this Act, the interagency body established pursuant to Executive Order 13491 (commonly known as the High-Value Detainee Interrogation Group) shall submit to the Secretary of Defense, the Director of National Intelligence, the Attorney General, and other appropriate officials a report on best practices for interrogation that do not involve the use of force.

(ii) RECOMMENDATIONS.—The report required by clause (i) may include recommendations for revisions to Army Field Manual 2–22.3 based on the body of research commissioned by the High-Value Detainee Interrogation Group.

(iii) AVAILABILITY TO THE PUBLIC.—Not later than 30 days after the report required by clause (i) is submitted such report shall be made available to the public.

(b) INTERNATIONAL COMMITTEE OF THE RED CROSS ACCESS TO DETAINEES.—

(1) REQUIREMENT.—The head of any department or agency of the United States Government shall provide the International Committee of the Red Cross with notification of, and prompt access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractor of the United States Government, consistent with Department of Defense regulations and policies.

(2) CONSTRUCTION.—Nothing in this subsection shall be construed— (A) to create or otherwise imply the authority to detain; or (B) to limit or otherwise affect any other individual rights or state obligations which may arise under United States law or international agreements to which the United States is a party, including the Geneva Conventions, or to state all of the situations under which notification to and access for the International Committee of the Red Cross is required or allowed.

So far so good. But note two limitations. First, the inherent weakness of the Field Manual compliance rule always has been that it depends entirely on what happens to be the content of the Field Manual itself; if it were altered to include some or all of the EITs, the compliance rule obviously would cease to be an obstacle to using such methods. Second, and relatedly, note that section 1045 imposes an affirmative obligation on DOD to "complete a thorough review" of the Field Manual every three years (with the first deadline coming due December 19, 2017, which is three years from the statute's enactment). Even if a Trump Administration does not direct its new Secretary of Defense to act quickly to alter the Field Manual, then, the issue is still likely to come up some time during the first year. Journalists on the Pentagon beat who have any interest in this area would do well to keep an ear to the ground for such changes.