The unsigned draft represents the clearest signal from President Trump that he intends to at least explore ways to fulfill campaign vows to return the CIA to a role that supporters claim produced critical intelligence on al-Qaeda but that ended in a swirl of criminal investigations, strained relationships with allies, and laws banning the use of waterboarding and other brutal interrogation tactics.
The proposal also puts a renewed focus on the military detention center at Guantanamo Bay, Cuba, saying it should be used for newly captured prisoners. No detainee has been sent there since Obama took office in 2009 and attempted to close the facility.
White House press secretary Sean Spicer cast doubt on the provenance of the draft document Wednesday, saying that “it is not a White House document” and “I have no idea where it came from.”
The document was provided to The Post by a person who said it had been circulated among agencies in Washington for comment. The immediate feedback, this person said, helped convince the White House counsel that the document needed wider distribution and review before being finalized. It was unclear which agencies received the document, but those with the most direct stake would include the CIA, the Pentagon, and the State and Justice departments.
It’s not yet clear whether Trump will sign the draft order, or whether senior members of his administration who have been skeptical of such plans, including Defense Secretary James Mattis and CIA Director Mike Pompeo, were consulted.
Democratic lawmakers at a caucus retreat, including Sen. Mark R. Warner (Va.), ranking Democrat on the Senate Intelligence Committee, said that Mattis and Pompeo were caught off guard by the draft order.
Members of Congress denounced the draft order, which was first reported by the New York Times on Wednesday. Sen. John McCain (R-Ariz.) said that Trump “can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America.”
Human rights organizations expressed outrage.
The draft order “authorizes the CIA to restart their detention program, which was the source of so much of the torture that undermined our national security,” said Elisa Massimino, president of Human Rights First. Those policies “made fighting the war harder and strengthened the resolve of our enemies. That’s what’s at stake here.”
The draft, labeled “Detention and Interrogation of Enemy Combatants,” notes that the United States has “refrained from exercising certain authorities critical to its defense” in the war against terrorism, including “a halt to all classified interrogations by the Central Intelligence Agency.”
The document stops short of instructing the CIA to rebuild prisons or resume interrogating terrorism suspects. Instead it calls for reviews leading to recommendations to the president on whether he should “reinstate a program of interrogation of high-value alien terrorists to be operated outside the United States and whether such a program should include the use of detention facilities operated by the Central Intelligence Agency.”
The order would vacate Obama’s decisions to dismantle the CIA program during his first days in office and would restore a 2007 order issued by President George W. Bush that sought to salvage the CIA’s ability to capture and hold terrorism suspects after it had abandoned waterboarding and other extreme tactics.
Any attempt to resume the CIA’s use of coercive methods at overseas prisons would face major obstacles. Among them is whether another country would be willing to allow such a facility after those that did so more than a decade ago — including Lithuania, Poland and Thailand — faced international condemnation for their complicity.
CIA veterans have said the agency has no desire to return to an assignment that continues to have damaging repercussions. A lawsuit against the architects of the program has forced the agency to release embarrassing documents, including internal memos showing that some employees were deeply troubled by the interrogation program from the outset.
“I just have to think there would be huge resistance and pushback,” said John Rizzo, the former acting general counsel of the CIA. “I think, personally, it would be a huge mistake for CIA to get anywhere near a new detention and interrogation program given the years of histories and controversies and investigations.”
The order would also presumably face opposition from senior figures in the Trump administration. Mattis, in particular, has argued against deviating from the techniques outlined in the Army Field Manual, a position that Trump said had caused him to reexamine his views after discussing the issue with Mattis in November
The draft executive order, which states that it shall be implemented “consistent with applicable law,” would not overturn any law banning torture. The 2016 National Defense Authorization Act reaffirmed laws limiting interrogation techniques to those used in the Army Field Manual and barring “the use or threat of use of force.”
Some legal experts cast the draft order as part of moves by Trump, including his plan to limit visas from Muslim countries, as cynical political gestures designed to energize his most ardent supporters while changing little in practice.
"The president would get a huge symbolic boost with his base while not violating the law and while changing nothing of substance,'' Jack Goldsmith, a former head of the Justice Department's Office of Legal Counsel and a Harvard Law School professor, said in an interview. "He would get maximum symbolic value while doing nothing. Trump's a genius at this."
But Goldsmith, who as the OLC chief rescinded some of the Bush administration’s torture memos, also predicted that Trump would “regret” this executive order, if it is issued, and that the “symbolic bang that Trump sought would backfire” on the administration.
The document acknowledges that existing laws provide “a significant statutory barrier to the resumption of the interrogation program.”
Congress’s authorization of the fiscal 2016 defense budget turned into law sections of Obama’s 2009 executive orders on detention and interrogation. It prohibits the use of any interrogation techniques not authorized or listed in the Army Field Manual on anyone in the custody of or controlled by any agency or employee of the U.S. government.
The law requires that the manual itself must be available to the public and that the International Committee of the Red Cross be notified and given “prompt access” to anyone detained in an armed conflict by any agent of the U.S. government, including contractors and subcontractors.
The draft order copy obtained by The Post contains editing marks and significant errors, including a reference to “the atrocities of September 11, 2011,” missing the actual date of the 2001 attacks by a decade.
Some of the edits seem driven by a political impulse to distance Trump’s administration from those of Obama and Bush. Trump frequently accused Obama of being reluctant to call certain attacks “radical Islamic terrorism.” Edits to the draft add references to “Islam.”
The phrase “global war on terrorism,” coined by the Bush administration, is also struck out and replaced with “fight against radical Islamism.”
There are other problematic assertions in the draft. It states, for example, that more than 30 percent of the detainees released from Guantanamo Bay “have returned to armed conflict.” But statistics from the Office of the Director of National Intelligence, which tracks detainee matters, suggest that figure is closer to 18 percent.
Karen DeYoung, Ellen Nakashima, Missy Ryan, Ed O’Keefe and Julie Tate contributed to this report.