Reviving Torture Under Trump Would Be Tricky but Not Impossible

President-elect has favorable views about Bush-era harsh interrogation methods

With a soft southern drawl and a neatly trimmed salt-white beard, the architect of the CIA’s torture program captivated his audience with stories of personally waterboarding al-Qaida operatives at secret prisons and interrogating 9/11 mastermind Khalid Sheikh Mohammed.

Dr. James E. Mitchell, who helped craft a harsh interrogation menu that included waterboarding, sleep deprivation and rectal feeding, defended the now defunct program and brushed aside critics who condemn the techniques as torture.

“The word torture has become like the word racist. It’s been used so many times it loses its meaning,” Mitchell said Tuesday at the American Enterprise Institute, a conservative think tank. “If this political correctness continues, we’re going to be standing on a moral high ground looking down into a smoking hole that used to be Los Angeles.”

If the debate over torture appeared firmly shut after President Barack Obama took office and banned CIA black site prisons and the Bush-era interrogation practices that have widely been labeled torture, the election of Donald Trump has dragged the issue back into the public arena.

The president-elect, who has crowed about torturing terrorism suspects, is less than two months away from moving into the White House with a national security team headlined by officials who have echoed Trump’s favorable views about the harsh interrogation methods employed by the CIA under George W. Bush.

Trump’s nominee for CIA director, Rep. Mike Pompeo, has said the agency’s dismantled black site interrogation program was “within the law, within the constitution,” while the president-elect’s pick for attorney general, Sen. Jeff Sessions, twice voted against anti-torture legislation.

That has raised concerns among human rights defenders, civil liberties advocates and legal scholars about whether President Trump will try to make good on Candidate Trump’s vows to bring back waterboarding and “a hell of a lot worse.”

[Trump Picks Pompeo for CIA Director]

Since his election win, Trump has hinted at a possible shift in his thinking, saying waterboarding is “not going to make the kind of a difference that maybe a lot of people think.”

And yet, he has refused to repudiate what he himself has called torture, and has instead opted to leave the door open to resuming such practices.

“If it’s so important to the American people, I would go for it. I would be guided by that,” he told The New York Times last month.

A new global survey indicates that a sizeable chunk of the U.S. public might be on board. Forty-six percent of Americans believe that an enemy combatant can be tortured in order to extract information, according to a report released Monday by the International Committee of the Red Cross. One in three Americans said torture is a part of war.

The CIA used so-called enhanced interrogation techniques on detainees captured abroad after the 9/11 attacks. The practices, including waterboarding, cramped confinement, stress positions and sleep deprivation for up to 11 days, were deemed legal by the Bush White House and Justice Department.

The CIA also used what were called standard interrogation techniques, which included sleep deprivation of up to 72 hours, isolation and blasting loud music or white noise.

[Torture Report Disappearance Raises Ire of Senate Democrats]

Of course, much has changed since the Bush administration drew up its memos that provided cover for the CIA’s detention and interrogation program.

The fear and anger that saturated U.S society immediately after the Sept. 11 attacks have subsided. And the public has learned many of the grim details of an interrogation program that was long shrouded in secrecy.

Congress has passed laws to prohibit the use of cruel or inhuman detainment or punishment. At the CIA and Pentagon, many officials are still smarting from the damage done to their respective institutions’ reputation by the mistreatment of detainees, and would likely resist renewing such practices.

President Obama’s counterterrorism adviser, Lisa Monaco, acknowledged as much last month at a security conference in Washington. Asked whether a new CIA director in a Trump administration could restart practices that have been labeled torture, Monaco replied: “As a policy matter, I suppose that’s possible.”

As with many of the president-elect’s campaign policy proposals, it’s unclear whether once in the White House Trump will try to bring back these harsh techniques as he has promised.

But while the Trump administration would face legal hurdles and bureaucratic resistance if it does try to do so, a White House determined to resume torture does have ways to make it happen.

“It’s not impossible,” said Stephen Vladeck, a law professor at the University of Texas’ School of Law. “It’s a steep climb, and it would require the complicity of at least some institutional actor.”

After the scandal surrounding the treatment of detainees in Iraq, Congress passed the Detainee Treatment Act of 2005. That bill limited the U.S. military to using interrogation techniques on individuals in its custody or held at its facilities to practices condoned by the Army Field Manual, which provides guidelines on the treatment of prisoners.

[Obama's Message on CIA Torture Report: Move On]

Four years later, President Obama made one of his first moves in office an executive order banning all government entities, including the CIA, from conducting enhanced interrogations, and limiting techniques to those outlined in the field manual. He also ordered the CIA’s network of secret prisons overseas closed.

Congress followed up in 2015 with the McCain-Feinstein amendment to the National Defense Authorization Act to prohibit torture or the cruel treatment of detainees.

That measure, which passed by a vote of 78 to 21, also anchors the treatment of detainees to practices condoned in the manual, and, like the executive order, applies to the CIA as well.

The manual can be revised every three years by the Department of Defense. It is next up for review in 2017. That process provides a potential avenue to reintroduce currently prohibited interrogation techniques like waterboarding or stress positions.

For now, at least, amending the field manual to allow such practices appears unlikely in light of Trump’s choice of retired Gen. James Mattis for secretary of defense.

Mattis reportedly told Trump in late November that waterboarding was ineffective, and said he could do better with “a pack of cigarettes and a couple of beers.”

Career professionals at the Pentagon also are likely to pushback against attempts to resume enhanced interrogations, in part because of their interest in protecting the department’s reputation.

“They saw the damage that was done to the institution by being associated with detainee mistreatment,” said Beth Van Schaack, a law professor at Stanford University who served as deputy to the State Department’s Ambassador-at-Large for War Crimes.

One potential loophole that wouldn’t require a change to the field manual is a section of the handbook called Appendix M, which provides guidelines on separating a detainee from others for renewable 30-day periods and the temporarily imposing sensory deprivation to isolate a detainee.

Some experts argue that the language in Appendix M is written in a vague enough way that it leaves room for interpretations that could backslide into what has been called “torture lite.”

“Though there are protections to ensure that abuse does not occur, we have seen in the past how confusing guidance led to coercive treatment,” said Elizabeth Arsenault, a national security law professor at Georgetown University. “We saw in the past that torture has a way of creeping.”        

If a Mattis-led Pentagon is unwilling to make changes, the Trump administration could instead take the matter to Congress. Here as well, a White House push to restart coercive interrogations would face an uphill slog.

The powerful chairman of the Senate Armed Services Committee, John McCain, says he will fight any effort to amend the field manual.

“There is no way that we are going to resume torture,” McCain, who was subject to torture as a prisoner of war in Vietnam, told CQ. “There is no way.”

Sen. Dianne Feinstein, who spearheaded the Senate Intelligence Committee’s report on the CIA’s torture program and co-sponsored the anti-torture legislation with McCain, echoed her Republican colleague, telling CQ any change to the field manual “will be fought.”

There has been little turnover in the Senate since lawmakers overwhelmingly backed the McCain-Feinstein amendment prohibiting torture. That suggests that an effort to overturn it would likely face significant opposition. And yet, the political winds could potentially shift enough under Trump to push lawmakers onto the opposite side of the vote column.

On top of that, 21 senators — all Republicans — opposed the measure, including five of the eight Republicans on the Senate Intelligence Committee, which oversees the nation’s spy agencies.

In retrospect, perhaps the most meaningful “No” vote came from Sen. Jeff Sessions, Trump’s pick for attorney general. The Alabama senator also voted against the Detainee Treatment Act of 2005.

[Feinstein Plans to Push for New Laws Stemming From CIA Torture Report]

That points to a third potential path for the administration: the Department of Justice could draft new memos arguing that the statutory limitation to the Army Field Manual violates the president’s executive power.

This is a variation on what the Bush administration’s Justice Department did in the early 2000s to provide legal cover to the CIA’s original detention and interrogation program.

With Sessions at the helm of the Justice Department, Trump may have an attorney general willing to contemplate such a move.

But Sessions could face stiff resistance within the department, said the University of Texas’ Vladeck.

“I think there would be enough institutional resistance because of how it would look and if it got out how badly it would damage the reputation of the department,” he said.

Then there’s the question of whether the CIA would even want to wade back into the black site interrogation world.

Dennis Wilder, a former senior CIA official who retired this year, said he thinks “there’s very little appetite for this in the intelligence community.”

Now a professor at Georgetown, Wilder said there’s also a fear that the CIA would be putting itself “in great danger of, frankly, being dismantled” if it returns to its past detention and interrogation practices without explicit congressional approval.

And yet, those who populated the top ranks of the CIA have defended the interrogation practices in the face of congressional and public criticism.

In a 2014 op-ed in the Wall Street Journal, former directors and deputy directors of the CIA, including George Tenet, Michael Hayden and Porter Goss, acknowledged that mistakes were made but insisted the interrogation program produced intelligence that helped the U.S. capture al-Qaida operatives and disrupt terrorist plots.

Trump’s pick for CIA director, Rep. Mike Pompeo of Kansas, has echoed those arguments in his defense of the interrogation program. He also has said the military and intelligence officials who worked to keep the nation safe after 9/11 are “not torturers, they are patriots.”

The Senate Intelligence Committee report on the torture program refuted assertions that the coercive interrogations were crucial to keeping the country safe.

“It’s not effective,” Feinstein said. “Every case that’s identified as having produced actionable intelligence, we in the report show that it was not due to the EITs, it was coming from some other venue.”

To restart the CIA’s black site program, the Trump administration would need to rescind Obama’s executive order banning CIA black sites. It also would need to find a foreign partner to agree to host a detention facility.

That could prove difficult, considering the blowback countries have faced for opening their territory to CIA black sites under the Bush administration.

European allies, such as Poland, that hosted black sites have faced legal trouble under the European Convention on Human Rights and lawsuits before the European Court of Human Rights for hosting CIA interrogation facilities or acting as a transfer point.

“The international community sort of realized that it wasn’t worth it,” Van Schaack said.

And yet, it remains a possibility that the U.S. could find a nation with a weak human rights record and an interest in collaborating with the Trump administration.

Mindful of Trump’s statements on torture, as well as the hoots and cheers they elicited on the campaign trail, Obama has been at pains in the waning days of his presidency to remind the nation why he took the step of prohibiting the Bush-era interrogation practices.

Obama turned to the issue once more, declaring at a recent appearance at MacDill Air Force Base in Florida: “We prohibited torture, everywhere, at all times. At no time has anybody who has worked with me told me that doing so has cost us good intelligence.”

“The whole objective of these terrorists is to scare us into changing the nature of who we are and our democracy,” he said. “And the fact is, people and nations do not make good decisions when they are driven by fear.”

Get breaking news alerts and more from Roll Call on your iPhone or your Android.