CIA director promises to resign if ordered to waterboard: Can he do that?

CIA Director John Brennan would resign if the next president ordered the Central Intelligence Agency to resume the practice of waterboarding, Mr. Brennan said in a question-and-answer at the Brookings Institution Wednesday.

His comments illustrate how the interplay between the commander-in-chief and the United States Armed Forces can create a check on the nation's use of force. 

"I can say that as long as I'm director of CIA, irrespective of what the president says, I'm not going to be the director of CIA that gives that order. They'll have to find another director," said Brennan, without mentioning Donald Trump, who has advocated a return to waterboarding.

Brennan has criticized Trump’s support of the interrogation technique before, but the CIA director’s comments Wednesday mark his most emphatic statement on the subject to date. It adds authenticity to his predecessor’s remarks on HBO’s “Real Time with Bill Maher” that the military could refuse an order from Trump if it is unlawful.

Waterboarding is an interrogation technique that involves pouring water over a cloth that covers the face and breathing passages of an immobilized captive to induce the sensation of drowning.

In the wake of 9/11, Defense Secretary Donald Rumsfeld authorized “enhanced interrogation techniques,” including waterboarding, that went beyond the Army’s interrogation manual. The CIA waterboarded three suspected militants detained in secret foreign prisons during the President George W. Bush administration.

After President Obama assumed office in January 2009, he signed an executive order that banned the practice and other “enhanced interrogation techniques.” The president’s successor could rescind that executive order, which Trump implied he would consider.

"If I have to do it and if it's up to me, I would absolutely bring back waterboarding,” Trump said in February, during an interview on ABC’s “This Week” with George Stephanopoulos. “And if it's going to be tougher than waterboarding, I would bring that back, too."

“Tougher” practices could include the hunting and killing of the relatives of terrorists, which is barred by the Geneva Convention, according to Politifact. On multiple occasions, Trump has said killing a terrorist’s family members would be more effective in fighting the self-declared Islamic State group than killing the terrorist.  

Trump eventually backpedaled on his approval of waterboarding, as well as the implication he would order the military to carry out actions that violated international law.

“I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities,” he told the Wall Street Journal in March.

But the damage was already done. Brennan said in April he would not allow his agency to carry out waterboarding because “this institution needs to endure," as The Christian Science Monitor’s Story Hinckley noted. Brennan’s remarks Wednesday are perhaps more powerful, showing his willingness to sacrifice his position rather than obey a presidential order he disagrees with morally.

Brennan isn’t alone. His predecessor, Michael Hayden, told Bill Maher in February the military could refuse to act as well.

“You are required not to follow an unlawful order,” Hayden said. “That would be in violation of all the international laws of armed conflict.”

The willingness of military personnel to follow an order is contingent upon their own regulations and traditions, which have occasionally acted independent of presidential intent.

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office,” Marine Lieut. Colonel Andrew Milburn wrote in a Pentagon scholarly journal in 2010. “These grant him moral autonomy and obligate him to disobey an order he deems immoral. … Indeed, the military professional’s obligation to disobey is an important check and balance in the execution of policy.”

This report contains material from Reuters.