Donald Trump declared during his presidential campaign that he would not only “bring back waterboarding,” which he considers a “minor form” of torture, but that he’d also bring back “a hell of a lot worse than waterboarding."
Trump backed away from that position a bit after meeting with retired Marine Corps. Gen. James Mattis, who told him that torture wasn’t a particularly effective way of gleaning information. Now the man who would actually be in charge of restarting the CIA’s brutal interrogation program has flatly told lawmakers that he would “absolutely not” be willing to do so — even if Trump personally gave the order.
The comment from Mike Pompeo, Trump’s pick to be the next CIA director, was the most striking moment of an otherwise quiet confirmation hearing before the Senate Intelligence Committee, whose questions made clear they were prepared to quickly sign off on the nomination.
Pompeo’s statement is really, really good news. Because although Congress passed legislation in 2015 aimed at preventing future presidents from reinstating waterboarding and other abuses, there was a major loophole in the legislation that a determined president could exploit to allow CIA interrogators to resume torturing terror suspects.
Which means that Pompeo’s answers during today’s hearing go a long way toward dispelling the fear that the CIA could be heading back toward a time that many Americans — including some within the CIA itself — believed to be some of the darkest days in CIA, and American, history.
Trump could bring back torture a lot easier than you think
When President Barack Obama took office in 2009, he put in place an executive order designed to prevent the abuses that took place during the Bush administration, which used waterboarding, extended sleep deprivation, standing in painful “stress positions” on broken feet or legs, and the forced “rectal feeding” of detainees carrying out hunger strikes over their conditions.
The executive order barred any “officer, employee, or other agent” of the US government (whether military, CIA, FBI, or any other agency) from using any interrogation method that is not among those methods listed in US Army Field Manual, which contains detailed rules and guidelines for a wide range of procedures important to soldiers serving in the field.
Since waterboarding and other “enhanced interrogation techniques” favored by the Bush administration are not part of the Army Field Manual, they could no longer be used.
The problem is that those restrictions were part of an executive order, not an actual law passed by Congress, which means they could easily be overturned by the next president with an executive order of his own.
To prevent that from happening, the Obama administration worked with the Republican-controlled Congress in 2015 on legislation to make the rule about following the Army Field Manual part of actual US law. The legislation had strong bipartisan support, passing the Senate in an overwhelming vote of 91-3. It was meant to ensure that future presidents couldn’t change the rules without going through Congress — but it contained a major loophole.
Robert Chesney, professor and associate dean at the University of Texas School of Law, explains on the Lawfare blog that there’s nothing explicitly stopping the secretary of defense, who is appointed by the president, from changing what’s in the Army Field Manual. Indeed, the law actually requires the Defense Department to "complete a thorough review" of the field manual every three years.
This means that the new secretary of defense could potentially push the Army to alter the Field Manual to include things like waterboarding in its list of approved interrogation techniques, thereby making all the safeguards President Obama put in place essentially meaningless.
Current CIA Director John Brennan, speaking at an event at the Brookings Institution think tank back in April, stated, “If a president were to order the agency to carry out waterboarding or something else, it’ll be up to the director of CIA and others within CIA to decide whether or not that direction and order is something that they can carry out in good conscience,” he said.
“As long as I’m director of CIA, irrespective of what the president says, I’m not going to be the director of CIA who gives that order. They’ll have to find another director,” he added.
But Brennan isn’t going to be the CIA director anymore — if confirmed, Pompeo is. And he’ll be serving under a president who openly advocates waterboarding and worse.
Pompeo’s stance on enhanced interrogation was a huge question mark
Going into the hearing, Pompeo was already in the extremely awkward position of having to walk a fine line between sticking up for the thousands of intelligence professionals he’ll be tasked with leading while maintaining a cordial relationship with a his soon-to-be boss, who just a day ago compared the US intelligence community to Nazi Germany.
Unlike other intelligence agencies, which prepare intelligence reports for a wide range of people and organizations across the national security realm, the CIA is tasked with providing intelligence specifically to the president and his Cabinet. Which means that a lot is riding on Pompeo’s ability to mend the relationship between the CIA and Trump.
So it was far from clear where Pompeo might come down on the issue of torture. As a Congress member, Pompeo had defended the CIA against its critics in Congress following the 2014 release of the Senate Intelligence Committee Report on Torture. At the time, Pompeo declared, “These men and women are not torturers, they are patriots,” and, “The programs being used were within the law, within the constitution.”
But that was back when Pompeo was in Congress, a place that tends to encourage over-the-top political grandstanding. The big question was whether that stance would shift now that he was up for the job of CIA director. Would he actually be willing to order his agents to use torture methods that have been formally repudiated by his immediate predecessors and that could leave personnel in the interrogation program vulnerable to criminal probes down the road?
Thankfully, it seems Pompeo’s stance has indeed shifted. He even seemed to address the potential loophole in the law, noting that it would take a change in the law for the CIA to use interrogation techniques that go beyond those permitted by the Army Field Manual. “And any changes to that will come through Congress, and the president … and regular order,” said Pompeo.
Many Americans view the CIA’s torture program to be one of the worst stains on CIA history. It’s impossible to predict if Pompeo would truly be willing to say no to Trump, especially if there were a major terror attack inside the US that prompted public calls for tougher measures. For now, though, the CIA pick’s comments were about as reassuring as they could be.