Annals of the Trump Administration

Annals of the Trump Administration #5: Would Waterboarding Count as "Force," and Must It Be Disclosed?

By Robert Chesney
Tuesday, November 22, 2016, 3:27 PM

Katherine Hawkins at the Constitution Project tweeted some good points in response to my earlier posts on Trump, interrogation, and waterboarding (here and here).  One concerns the possibility that the NDAA FY'15 in fact does prohibit a Field Manual amendment that would include waterboarding.  The other questions whether Trump could add a classified annex to the Field Manual.

Does Section 1045 forbid waterboarding as a "use or threat of force"?

Section 1045(a)(6)(A)(i) of the NDAA FY'15 contains language stating that Field Manual revisions must "ensure" the practices listed in the manual "do not involve the use or threat of force."  Does this mean that waterboarding cannot be added to the Field Manual? 

I have no doubt that this was intended by Senators McCain and Feinstein, at least, as a hedge against backsliding on waterboarding and the like.  But the interesting question is whether the language actually used guarantees that result. It certainly *can* be read to encompass waterboarding, but it is not clear to me that the "force" language *unavoidably* captures waterboarding.  I would like to have seen far more precise language on that point.  

All of which is yet another reminder that we likely are in for another period in which executive branch interpretations of statutory language applicable to interrogation will be a central issue.  And that in turn highlights the importance of two additional matters: (i) who gets appointed to head OLC, DOD GC, White House Counsel, etc., and (ii) will the public be aware of controversial legal interpretations?   The latter point got lots of attention in connection with the USA Freedom Act and the context of FISC interpretations of surveillance law.  It applies by extension to all sorts of additional legal issues associated with national security.  Well, speaking of transparency...

Does Section 1045 preclude the use of a classified annex for the Field Manual?

In an earlier post I mentioned that a proposed field manual revision might be framed as a classified annex, given that Trump has made clear his desire to keep interrogation methods secret.  Katherine points out, however, that section 1045(a)(6)(A)(ii) of the NDAA FY'15 states:

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.

(emphasis added).  Does this ensure that there can be no classified annex added later?  This time I think the language is precise enough for the purpose (though I do think it is not as precise as it could have been; how about just saying "All methods shall be listed publicly"?).