Foreign Constraints on the Trump Administration

By Ashley Deeks
Thursday, February 16, 2017, 12:49 PM

On Tuesday, Jack expressed concern about the possibility that the Trump presidency will end up being overly weak, and he highlighted a variety of actors who have robustly begun to check Trump’s exercises of power. One set of actors he did not include—but which have an important role to play here—are foreign military and intelligence services. Those foreign actors with whom the United States cooperates can play a powerful role in constraining U.S. options—either because of their own policy preferences or their own legal constraints. Indeed, foreign actors can even stimulate the functioning of domestic checks and balances or at least simulate similar effects.

The al Qaeda detainee being held in Yemen offers a case in point. The New York Times reports that the Trump Administration is evaluating whether to bring Abu Khaybar to Guantanamo, try him in federal court, or pursue a third option. The article notes one of the hurdles to the Guantanamo option:

Many American partner nations are likely to resist being seen as helping to send a prisoner to Guantánamo Bay. Some allies, including in Europe, provide crucial intelligence to the United States and have sought assurances that their collaboration will not result in prisoners’ being sent to Guantánamo.

That is, whether the option of transferring someone to Guantanamo exists in any particular case is not entirely within U.S. control. For instance, if a European state provided the United States with the intelligence that led to Abu Khaybar’s capture and detention by an unnamed third state, the United States may already have had to provide that European state with an assurance that it would not transfer him to Guantanamo. European states previously have made similar demands of the United States in the detention and targeting contexts to avoid running afoul of their own domestic and international legal obligations. Similarly, if Abu Khaybar is being held by an Arab state such as Saudi Arabia, the Arab government might agree to turn him over to the United States only on the condition that he not be sent to Guantanamo.

The debate two weeks ago about President Trump’s draft executive order on detention and interrogation illustrates a similar point. That draft would have established a high-level policy review to provide recommendations about whether the CIA should re-establish a secret detention and interrogation program abroad. The Trump Administration may have taken the idea of opening secret sites off the table for a variety of reasons, but one likely reason is a serious practical hurdle: the United States would have had a hard time finding another state or states to act as a willing host to such facilities.

Foreign states have three reasons to want to avoid a program like that. First, the program enmeshed some of the former states that hosted CIA facilities in long-running investigations and litigation about their role in hosting the sites. The European Court of Human Rights issued a judgment against Poland for exposing several detainees to the serious risk of ill-treatment by allowing them to be held in CIA facilities in Poland. Domestically, Polish prosecutors opened an investigation about what went on in that CIA facility and brought criminal charges against one person (believed to be Poland’s then-intelligence chief). And after the U.S. Senate Select Intelligence Committee (SSCI) published its Report on the CIA’s detention, interrogation, and rendition program, Polish jurists and advocates issued calls to hold Poland’s former President and Prime Minister responsible for allowing the site to exist. Investigations are ongoing in Lithuania, which also hosted a CIA site.

Second, even those states that were not involved in the program would have been keenly aware of these investigations and litigation, and accordingly would hesitate to offer up their territory for U.S. detention and interrogation. This is particularly true for states parties to the Council of Europe in light of European Court of Human Rights cases on rendition, detention, and interrogation. But also is true for a variety of other states that care about their international reputation or want to avoid condemnation or sanctions from European states. Although it is conceivable that the CIA might have been able to find a willing partner in a state with an aggressive and powerful intelligence service and limited interest in the rule of law, that list of states would be far shorter than it was in 2001.

Third, reputations aside, many states face domestic and international legal prohibitions on assisting another state in conducting non-criminal detentions. Various states have domestic laws prohibiting them from holding individuals in undisclosed detention facilities and from detaining individuals without process. Although some of these laws might apply somewhat differently to detainees in an armed conflict (if the host state agrees with the U.S. characterization of al Qaeda and ISIS members as being detained during an armed conflict), this ambiguity would offer limited comfort to states considering whether to host these facilities.

In short, both U.S. efforts to find foreign partners abroad for future detention activities and U.S. attempts to transfer individuals to Guantanamo will confront what I have referred to elsewhere as “peer constraints.” The idea of “peer constraints” is intended to capture the limitations—particularly legal limitations—imposed on an intelligence service or armed force in excess of those imposed by their own state. Measured against a baseline of the domestic laws and regulations that constrain the CIA and DOD, peer constraints are those rules that, in the context of intelligence and military cooperation, decrease the CIA’s or DOD’s operational flexibility.

Recent developments show that even the Gulliver that is the United States ultimately can be tied down in some areas by the legal and political demands of smaller, less powerful states. The original secret sites program itself offers a powerful example. As the SSCI Report notes, “With the exception of [one country], the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program.” By 2006, the CIA concluded that it was “stymied” and the “program [of secret detention and interrogation] could collapse of its own weight.” Shortly thereafter, the United States shut those secret facilities. Peer constraints helped produce that outcome.

In short, taking measures such as re-establishing secret sites or sending individuals to Guantanamo will be easier said than done, especially where the United States requires intelligence, military, or logistical assistance from foreign actors.