CIA Detention: Executive Order or Executive Suggestion?

    James Taranto, in Today's Best of the Web, explored "The Somali Connection" in the Benghazi affair of September 11, 2012.  He noted that in 2011, The Nation and The New York Times had both run stories about a rumored CIA black site in Mogadishu, Somalia.  As has often been the case over the last four years, the left has treated the Obama administration's foreign policy, especially its anti-terror policies, like a hair in its soup - it's distasteful, even disgusting, but maybe not worth embarrassing the host by bringing it up in front of all the guests.  In keeping with this protocol, the Mogadishu stories received little notice.

    However, given the reports now brought to light by Paula Broadwell's involvement in the festering Benghazi scandal smorgasboard, those 2011 reports of a secret CIA prison may take on new significance.  A sentence that, at the time, received relatively little attention from a Fox News report on October 26th was highlighted by Broadwell in remarks she made that same day at the University of Denver:

According to a source on the ground at the time of the attack, the team inside the CIA annex had captured three Libyan attackers and was forced to hand them over to the Libyans.

    A new Fox News story on Monday of this week clarified and expanded upon this report:

A well-placed Washington source confirms to Fox News that there were Libyan militiamen being held at the CIA annex in Benghazi and that their presence was being looked at as a possible motive for the staged attack on the consulate and annex that night.
According to multiple intelligence sources who have served in Benghazi, there were more than just Libyan militia members who were held and interrogated by CIA contractors at the CIA annex in the days prior to the attack. Other prisoners from additional countries in Africa and the Middle East were brought to this location.
The Libya annex was the largest CIA station in North Africa, and two weeks prior to the attack, the CIA was preparing to shut it down. Most prisoners, according to British and American intelligence sources, had been moved two weeks earlier.

    Taranto notes that a CIA spokesperson swatted down this notion:

The agency issued a categorical denial: "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."
Executive Order 13491, issued on President Obama's second full day in office, provides: "The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future."

    Assuming that the CIA's statement is the full denial (as delivered to Eli Lake of the Daily Beast,) perhaps it is not as categorical as it seems.  The denial appears to have been delivered directly to Lake via email or verbally as the text of the denial is not found on any government website.  Skepticism runs high at a denial from any government entity, and one could be forgiven for smelling conspiracy in a denial from the CIA (the "spooks", as those at the CIA are routinely called.)  Note that the statement does not say the "CIA has not had any detention facilities," but rather "has not had detention authority."
The second sentence seems equally cagey, referring to the CIA not being "in the detention business," not that the CIA does not detain.

    Further, the executive order itself seems to leave wiggle room.  As noted above, it says [emphasis added] "CIA shall close as expeditiously as possible any detention facilities."  An email correspondent of mine notes that it is unlikely that this CIA facility in Libya existed in 2009 when the executive order was issued, which is a fair point.  But this Benghazi CIA station could have been established for entirely different purposes originally and was pressed into service later as a detention facility.  Indeed, the executive order acknowledges that CIA detention is not entirely avoidable.  This clause in the executive order further clarifies the detention prohibition:

    (g) 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.”

    So if persons were truly being detained at the Libya facility, it may come down to how far one can stretch "short-term, transitory basis."  As the Fox News story noted, "Most prisoners, according to British and American intelligence sources, had been moved two weeks earlier."  Could this had been an attempt to stay within the "short-term, transitory basis" boundary?

    Even further wiggle room might be found in another executive order issued the same day as the one noted above:

   Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.

    This one even had a (famously unkept) deadline of one year, while the terms of Executive Order #13491 were “as expeditiously as possible.”  An Executive Order does not have the force of law, so if the President has allowed Guantánamo to remain open nearly three years after the date called for in his order, he may have granted a waiver, either explicitly or implicitly, in the matter of CIA detention as well.

    Although I alluded above to a whiff of conspiracy about this whole issue, I generally try to take events at face value.  However, if the CIA felt it needed to publicly deny the detention story for national security purposes, at least the justifications I outlined above might give it cover in a later investigation.  But if the stories turn out to be true, and even worse, as Taranto puts it, the four killed in Benghazi "paid with their lives for Barack Obama's moral and political posturing," the ramifications will surely test the strength of the president's supporters' stomachs.  Finding a hair in the soup is one thing.  Finding a dead rat at the bottom of the bowl is quite another.