GUANTANAMO BAY, CUBA—Permit the use of torture, reopen a network of CIA “black sites” that were closed when Barack Obama took power and send newly captured detainees to this offshore Cuban prison for trial before its controversial war crimes courts.

Those are the possible outcomes if U.S. President Donald Trump endorses what is contained in a leaked draft executive order, essentially returning the U.S. to the early days after the 9/11 attacks when then-vice-president Dick Cheney famously stated the need to work through the “dark side.”

The draft of the three-page order — published Wednesday by the New York Times and other news outlets — proposes expanding Guantanamo’s population to include detainees from Daesh, also known as ISIS or ISIL, or members of other “radical Islamist groups.”

Although the origins of the order are unclear, and White House Press Secretary Sean Spicer later told a Washington press briefing that it was not “a White House document,” many of the provisions echo what Trump promised during campaigning, including his desire to bring back waterboarding, a torture technique, and a “hell of a lot worse.”

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This proposed return to torture and holding additional Guantanamo military trials was particularly poignant for those in Guantanamo defending the five detainees accused of orchestrating the Sept. 11, 2001 attacks.

They have long complained that Guantanamo’s trials — known as military commissions — which were established under the Bush administration and amended under Obama, are undemocratic and ineffective. They are also a logistical nightmare because of the restricted travel and the fact that these offshore courts known as “Camp Justice” have always been considered a temporary facility, rather than a permanent legal complex with adequate accommodation or offices for lawyers and observers.

“The whole process is extremely brittle. It is easy for trials to come off the rails,” said lawyer James Connell, who represents accused Ammar al Baluchi.

On Wednesday, the first pretrial hearings in 2017 did not exactly come off the rails, but they were delayed — again — because of the absence of defence lawyer Cheryl Bormann, who broke her arm last weekend. Army Col. James Pohl ordered that hearings, which were scheduled to take place over the next eight days, be postponed until March.

Pohl did, however, allow lawyers to conduct two closed-door sessions, including a Friday morning deposition by Lee Hanson, the elderly father of Peter Hanson, who was killed aboard United Airlines Flight 175 on Sept. 11 with wife Sue Kim Hanson and their 2-year-old daughter, Christine.

Although there is a risk the deposition could be considered inadmissible because of Bormann’s absence, the prosecution pushed forward, saying it would rather preserve Hanson’s testimony and not have to ask the grieving 84-year-old father and his wife to make the exhausting trip to Guantanamo again.

The issue of torture at the so-called black sites — secret interrogation centres that the CIA operated outside the rules of war established by the Geneva Conventions — is intricately linked to these proceedings; the legacy of torture is one of the reasons this trial has been so difficult to conduct. All five accused were held and tortured at black sites and the government has closely guarded classified documents pertaining to their treatment. All hearings held here are subject to a 40-second delay between what is said in court and what is broadcast in the gallery where journalists, human rights observers and relatives of 9/11 victims sit — which makes for a jarring viewing experience akin to watching a badly dubbed foreign film.

Prosecutors have said the delay is needed to prevent sensitive classified material from being disclosed, but defence lawyers have noted that previous mentions of the CIA’s use of torture would trigger censors to cut the audio feed.

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The legal battle to uncover exactly what happened in these facilities — and how that may affect the accused cases — goes beyond this case. Although a 500-page executive summary of the U.S. Senate intelligence committee’s investigation into the CIA torture program was published in 2014, the Obama administration fought the release of the full 6,700-page report. There is fear that the Trump administration would outright destroy the report.

Among other revelations, it is already known that Khalid Sheikh Mohamed, the alleged architect of the 9/11 attacks and Al Qaeda’s former No. 3, was waterboarded 183 times in CIA custody, while alleged Saudi financier Mustafa Ahmad al Hawsawi was subjected to “rectal rehydration.”

Hawsawi, who has undergone two rectal surgeries, including a recent one in Cuba his lawyer says was needed as the result of “sodomy” but a prison doctor said was to treat hemorrhoids, sat in court Wednesday on a pillow, as he always does during hearings.

There may not be much sympathy for the treatment of the 9/11 accused, but the possibility that Obama’s ban on “enhanced interrogation techniques,” which in many cases was a euphemism for torture, could be overturned by Trump elicited a strong reaction in Washington.

As is increasingly the case now, that led to a political Twitterstorm of dissent:

Arizona Republican Sen. John McCain, who endured torture as a prisoner of war in Vietnam and is a consistent opponent of its practice, tweeted that Trump “can sign whatever executive orders he likes, but the law is the law — we’re not bringing back torture.”

Adam Schiff, a Democratic representative from California and ranking member of the House intelligence committee, wrote: “Torture doesn’t work. Intelligence Community and military both agree. Stop watching 24 on TV, and start listening to General Mattis,” referencing the popular television series where Kiefer Sutherland’s character frequently saves the day by torturing suspects and new Defence Secretary James Mattis stated opposition to torture.

Rand Paul told CNN, “I’m alarmed by anybody that wants to go back to torture.”

Well Trump seems to, according to an interview with ABC news Wednesday afternoon: “Yes, absolutely,” he said on whether he believes torture works and cited Daesh’s atrocities as a reason to waterboard detainees. “We have to fight fire with fire.”

Pragmatic, ethical and moral concerns aside, Connell highlighted how the use of torture in the days after 9/11 has made these trials virtually impossible.

“Any attempt to reinstate torture, redefine Geneva Convention responsibilities or to use the military commissions authority more robustly has failed to learn from the lessons of the past,” Connell said Wednesday.

“Torture makes criminal cases virtually impossible to prosecute. In fact it’s fair to say that torture and due process are mutually exclusive.”

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