During his presidential campaign, Donald Trump vowed to bring back torture, including both waterboarding and techniques that were “a hell of a lot worse.” And on Wednesday, a draft executive order leaked that, if issued, could clear the way for the CIA to brutally interrogate terror suspects in secret prisons around the globe.
The executive order, first reported by the New York Times’s Charlie Savage and published in full by the Washington Post, would revoke the Obama administration’s ban on offshore “black site” facilities as well as the current ban on interrogation techniques that aren’t in the US Army Field Manual, including waterboarding. It also argues that it is in “the interests of the United States” to maintain the controversial US detention facility at Guantanamo Bay, Cuba — a prison that President Obama tried and failed to close.
Now, it’s not clear that Trump is actually going to issue this order. White House press secretary Sean Spicer has denied that the Post’s draft is authentic, though it’s hard to imagine who would have faked such a thing or why. And in a press conference on Friday, Trump said that although he personally believes that torture works, he will defer to Secretary of Defense James Mattis, who opposes torture:
We have a general that has just been appointed Secretary of Defense, General James Mattis. He has stated publicly that he does not necessarily believe in torture, or waterboarding, or however you want to define it — enhanced interrogation would be a word a lot of people would like to use.
I do not necessarily agree. But I would tell you that he will override, because I'm giving him that power. He is an expert. He’s highly respected. He is the general’s general — got through the Senate very, very quickly, which in this country is not easy I will tell you. And so I’m going to rely on him. I happen to feel that it does work. I have been open about that for a long period of time.
But I'm going with our leaders, and we are going to win — with or without — but I do disagree.
This echoes similar comments Trump made in a recent interview with ABC, in which he said he’d defer to Mattis as well as to incoming CIA director Mike Pompeo, who also opposes torture.
But while Trump’s words may seem reassuring, the bottom line is that he is convinced torture works. And that means it may come back all the same.
How this executive order could begin the process of returning to torture
When President 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 included beatings, 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. The book doesn’t include waterboarding or other “enhanced interrogation techniques” favored by the Bush administration, which meant they could no longer be used.
In 2015, the Obama administration worked with the Republican-controlled Congress to make the Army Field Manual rule 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 bring back torture without going through Congress — but it contained a major loophole.
Robert Chesney, a 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 Mattis 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.
The draft text of Trump’s executive order seems well designed to take advantage of this loophole. It says the secretary of defense “shall review the interrogation policies set forth in the Army Field Manual” and make “such modifications and additions” as he pleases.
This is why the public opposition from Trump’s newly confirmed Pentagon chief is so important. Mattis is a longtime torture foe — during his service as a general in Iraq, he aggressively prosecuted soldiers under his command who beat an Iraqi detainee to death. During his Senate confirmation hearing, Mattis flatly said he “would refuse” any orders to bring back torture. Trump’s appointment of Mattis, then, could plug the loophole.
But ultimately, Mattis serves at the pleasure of the president — as does new CIA Director Mike Pompeo, who has also expressed opposition to bringing back torture. If Trump is dead set on bringing back torture, he could bring a lot of pressure to bear on his appointees to back them up — or to fire them and replace them with more pliable officials.
The bottom line is that it would be difficult for Trump to reinstate the CIA’s brutal interrogation program. But it wouldn’t be impossible.
Torture does not work
Whether or not Trump follows this draft executive order to its logical conclusion and brings back brutal interrogation techniques and black sites, it is worth remembering that most lawmakers and academics who have studied the issue believe torture does not work.
The clearest official look into the US’s history of torture came from a Senate Intelligence Committee report, released in December 2014, which came out of an extensive review of both publicly available evidence and classified reports from CIA officers. This was a partisan document issued by the then-Democratic majority; Senate Republicans issued an alternative report, with different findings, and the CIA publicly rejected the report’s conclusions. They argued that the Democrats cherry-picked intelligence to support their anti-torture conclusions and that the CIA had been forthcoming about how the program worked.
“[The report is] an incomplete and selective picture of what occurred,” then-CIA Director John Brennan said. “The record does not support the study’s inference that the agency systematically and intentionally misled each of these audiences on the effectiveness of the program.”
Despite the attacks on its credibility, the documentation in the 525-page report is extensive, compelling, and deeply disturbing. It documents, among other things, CIA officers forcing hummus into a detainee's rectum, imprisoning an "intellectually challenged" man "solely as leverage to get a family member to provide information," and hiding the truth about how the program worked from the rest of the government.
Perhaps the worst part of all is that the CIA should have known that inflicting all that pain was pointless — because its own officers told it. This is, in some ways, the most telling sentence of the entire report:
CIA officers regularly called into question whether the CIA's enhanced interrogation techniques were effective, assessing that the use of the techniques failed to elicit detainee cooperation or produce accurate intelligence.
While the CIA was "rectally rehydrating" prisoners, many of its own experts were telling it that the torture was pointless. As the Senate report makes very clear, the record suggests the dissenting officers were right.
"The Committee reviewed 20 of the most frequent and prominent examples of purported counterterrorism successes that the CIA has attributed to the use of its enhanced interrogation techniques, and found them to be wrong in fundamental respects," it finds.
"In some cases," the report concludes, "there was no relationship between the cited counterterrorism success and any information provided by detainees during or after the use of the CIA's enhanced interrogation techniques." In the remaining cases, the information either wasn't new or was acquired before detainees were tortured.
In the hunt for Osama bin Laden, for example, the most critical information came from either standard interrogations or non-detainee sources of information. Torture may actually have been counterproductive. Three detainees who were tortured gave information that the CIA later concluded was false and “intentionally misleading.”
This is consistent with what you hear from many former US government officials who have actually interrogated suspected terrorists.
Take Mark Fallon, a former Naval Criminal Investigative Service (NCIS) agent and interrogator who chaired the High-Value Detainee Interrogation Group, a US government body tasked with reviewing evidence on interrogation practices. In 2015, he gave an interview to Newsweek in which he described the reasons he found torture to be ineffective.
"I don’t want to force people to tell me things," Fallon said, "because then they will tell me things they don’t even know."
The issue with torture is that it induces too much cooperation. When an interrogator asks a question — say, “Do you know the name of ISIS operatives in America” — they need to get truthful answers. If you act on false information, it’s worse than getting nothing — it can lead investigations down the wrong pathway entirely, wasting precious resources and potentially implicating innocent people.
When using standard, noncoercive interrogation, they can make reasonably informed judgments about whether detainees are lying or telling the truth. That doesn’t happen when someone is being beaten, electrocuted, or made to think they are drowning.
“Evidence gained from torture is unreliable,” Ali Soufan, a former FBI agent who supervised interrogations of high-value terrorists after 9/11, writes in his 2011 book The Black Banners. “There is no way to know whether the detainee is being truthful, or just speaking to either mitigate his discomfort or deliberately provide false information.”
Torture is a culture
Torture isn’t merely ineffective. It’s also vicious and deeply corrosive of democratic institutions and the mental and psychological well-being of those ordered to carry it out. In order to understand the full extent of the damage done by merely speculating about bringing torture back, you need to understand that torture isn’t just a practice. It’s a culture.
Georgetown University law professor David Luban was the first to identify torture culture and to explain how it works. Once governments permit torture even for limited intelligence gathering, Luban argues, the logic of its use just encourages more torture. After all, any suspected terrorist could potentially have lifesaving intelligence. If you can use torture for some of them, why not all?
In 1987, for example, an Israeli commission gave interrogators a green light to use "moderate physical pressure" only in cases where the victim had information about an imminent attack — your classic Jack Bauer ticking time bomb. By the time Israel's Supreme Court outlawed torture in 1999, two-thirds of all Palestinians in Israeli custody had been reportedly subjected to those "pressures," according to the Atlantic's Mark Bowden.
This, according to Luban, is why the original torture program under President George W. Bush was so insidious. The bureaucratic and psychological mechanisms that fuel torture, including authorization coming from the highest levels, make torture into a first resort.
"We judge right and wrong against the baseline of whatever we have come to consider 'normal' behavior," Luban writes. "If the norm shifts in the direction of violence, we will come to tolerate and accept violence as a normal response." It's how, according to the Senate Armed Services Committee report, legal authorization for CIA torture led directly to the abuses at Abu Ghraib.
The only way to fix this normalization of torture is to render it abnormal and culturally unacceptable. US government officials need to feel shame at what happened in order for them to no longer consider torture just a tool they can pull out of the toolbox. The more the president and his aides open the door to torture, even through as tentative a step as an executive order, the more likely lower-level people are to resort to it.
Even if Trump doesn’t directly authorize torture, low-level CIA operatives might well see his public comments and this executive order as tacit authorization — a sense that Trump would have their back, or at the very least not prosecute them. Once you start saying that torture is necessary to save the country, everyone starts to think of themselves as a potential Jack Bauer.
Torture is not just another tool in the toolbox. It is a vicious practice that brutalizes suspects who may well be innocent while also degrading those who carry it out. President Obama did all he could to prevent Americans from ever employing it again. President Trump may do all he can to bring it back.