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A Fair Question

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Thursday, May 3, 2012 at 3:26 PM

The Washington Post’s Greg Sargent poses an interesting question:  If elected, does Mitt Romney intend to revoke President Obama’s January 22, 2009 executive order on interrogation?

The order largely restricts U.S. interrogators to the techniques authorized by the Army Field Manual.  It thus effectively prohibits the use of waterboarding and other “enhanced interrogation techniques” employed by the CIA during the Bush Administration.  Some on the right have criticized Obama for banning those techniques, and Romney himself has suggested that enhanced interrogation techniques should be used in some cases.  But unless the interrogation executive order is revoked or amended in some way, it will remain in effect going forward — no matter who is President.

So:  would President Romney revoke the order?

Perhaps he would.  Or perhaps he would not preemptively revoke the order at the outset of his Administration, but would reserve the right to issue an order superseding it if circumstances arose where he thought waterboarding or other “enhanced” techniques were needed.  But the latter route would mean leaving the interrogation order in place in the meantime.  To take that route, Romney would need to concede that the mere existence of the order does not threaten national security.  At least some of Obama’s critics seem to have suggested otherwise, so it would be interesting to know where Romney stands.

Of course, merely revoking or amending the interrogation order would not establish the legality of waterboarding or any other technique.  Instead, it would effectively re-pose the question taken up in the infamous OLC “torture memos,” written by John Yoo and others.  Those memos construed various legal restrictions (including especially the federal anti-torture statute, 18 U.S.C. 2340A) not to prohibit waterboarding or other techniques used by the CIA in the years immediately after the 9/11 attacks.  Those memos are no longer in effect.  Some were withdrawn and/or modified by OLC during the Bush Administration.  Section 3(c) of Obama’s interrogation order then expressly stated that unless the Attorney General directs otherwise, no U.S. official conducting any interrogations may rely upon any interpretation of the law governing interrogation issued by anyone in DOJ between September 11, 2001 and the end of the Bush Administration.  It thus took presumptively off the table all Bush-era OLC opinions regarding interrogation.  Finally, OLC followed up later in 2009 by formally withdrawing several such opinions.  See, e.g., here.  As a result, the legal opinions upon which the enhanced interrogation program was based are no longer in effect.  (And rightly so, in my view — but that’s not my precise point here.)

It’s inconceivable to me that the CIA or any other government agency would ever re-commence an enhanced interrogation program without, at a minimum, specific written legal authority.  Among other things, the officials called upon to implement the program would demand protection from criminal liability for engaging in actions that many would quite reasonably view as federal crimes.  Given the huge criticism that the torture memos and their authors faced, a new OLC opinion along similar lines might not be enough as a practical matter, even assuming OLC would issue one (which I doubt).  Moreover, Congress responded to the initial torture memos by imposing additional statutory restrictions in this area, above and beyond those that the torture memos circumvented.  Thus, specific legislative authorization might be seen as necessary to start up any new enhanced interrogation program.  It’s rather difficult to imagine Congress providing such authorization.

This all prompts a follow-up question to the one posed by Sargent:  Beyond dealing with the interrogation executive order, how would Romney establish the legality of waterboarding and the other enhanced interrogation techniques he thinks should be available?  He has said that he doesn’t think waterboarding is “torture,” but of course that’s not enough.  Does Romney propose to reinstate the torture memos?  Does he propose to make support for those memos, and the legal theories underlying them, a litmus test when deciding whom to nominate for Attorney General or head of OLC?  Does he propose to ask Congress to pass legislation authorizing waterboarding?

In other words, to the extent the law stands as a rather serious barrier to Romney’s preferred policy on waterboarding and related techniques, what’s his plan?