Foreign and Defense Policy, Middle East and North Africa

Yes, the CIA does still have ‘detention authority’

Image Credit: The U.S. Army (Flickr) (CC BY 2.0)

Image Credit: The U.S. Army (Flickr) (CC BY 2.0)

A CIA spokesman recently denied claims the agency was holding prisoners at its Benghazi annex, declaring:

The CIA has not had detention authority since January 2009, when Executive Order 13491 was issued. Any suggestion that the Agency is still in the detention business is uninformed and baseless.

This last part of that statement may (unfortunately) be true, but the first part is simply incorrect.

There is no evidence that the CIA was in fact holding any prisoners in Benghazi (and, quite frankly, the agency is so traumatized by what it has been put through under the Obama administration, I’d be shocked if they were). But the CIA does in fact have authority to hold prisoners — even under the executive order issued by President Obama.

While Executive Order 13491, signed on January 22, 2009, orders the closure of all CIA detention facilities (aka “Black Sites”), Section 2(g) specifically states:

The terms ‘detention facilities’ and ‘detention facility’ in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

The phrase “short-term, transitory basis” is left undefined. This language was specifically formulated by the Obama White House (not the CIA) to ensure that the president’s E.O. did not put the US out of the rendition business. It provides the CIA with the necessary practical flexibility to capture bad guys overseas and hold them for a period of time while they are transitioned to the custody of other entities — whether the Department of Defense or a foreign government.

In other words, if CIA was holding detained militia fighters in the Benghazi annex on a short-term, transitory basis, it would not be in violation of Executive Order 13491. They have the authority to do so — and that authority comes straight from President Obama.

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