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State-Sanctioned Torture in the Age of Trump
By Marjorie
Cohn
January 25,
2017 "Information
Clearing House"
- "Truth
Out" -
During the
presidential campaign, Donald Trump declared he would
"immediately" resume waterboarding and would "bring back
a hell of a lot worse than waterboarding" because the
United States is facing a "barbaric" enemy. He labeled
waterboarding a "minor form" of interrogation.
Waterboarding,
which involves pouring water into the nose and mouth to
make victims feel like they're drowning, has long been
considered torture, which is a war crime under US and
international law. Indeed, the United States hung
Japanese military leaders for waterboarding as a war
crime after World War II.
In late
November 2016, Vice President Mike Pence refused to rule
out torture in the Trump administration.
Torture
Is Always Illegal
What does
torture have in common with genocide, slavery and wars
of aggression? They are all "jus cogens." That's Latin
for "higher law" or "compelling law." This means that
under international law, no country can ever pass a law
that allows torture. There can be no immunity from
criminal liability for violation of a "jus cogens"
prohibition.
The United
States has always prohibited torture -- in our
Constitution, laws, executive orders, judicial decisions
and treaties. When we ratify a treaty, it becomes part
of US law under the Supremacy Clause of the
Constitution.
"No exceptional
circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any
other public emergency, may be invoked as a
justification for torture," the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, which the US ratified, states
unequivocally.
Torture is
considered a grave breach of the Geneva Conventions,
also ratified by the United States. Geneva classifies
grave breaches as war crimes.
The US War
Crimes Act and 18 USC, sections 818 and 3231, punish
torture, willfully causing great suffering or serious
injury to body or health, and inhuman, humiliating or
degrading treatment.
And the Torture
Statute criminalizes the commission, attempt, or
conspiracy to commit torture outside the United States.
Torture
Doesn't Work
Trump said he
would approve the use of waterboarding "in a heartbeat"
because "only a stupid person would say it doesn't
work." But even "if it doesn't work," he added, "they
deserve it anyway, for what they're doing."
Experts agree
that torture does not work. A 2006 study by the National
Defense Intelligence College found that traditional,
rapport-building interrogation techniques are extremely
effective even with the most hardened detainees, but
coercive tactics create resistance and resentment.
Interrogators
concur that torture is not efficacious to glean
intelligence. Glenn L. Carle, who supervised the 2002
interrogation of a high-level detainee for the CIA, told
The New York Times that coercive techniques "didn't
provide useful, meaningful, trustworthy information."
Likewise, Ali
Soufan, a former FBI Supervisory Special Agent who
conducted several high-profile terrorism interrogations,
testified before Congress that harsh interrogation
techniques "are ineffective, slow, and unreliable, and
as a result harmful to our efforts to defeat al Qaeda."
Matthew
Alexander, a former senior military interrogator who
supervised or conducted 1,300 interrogations in Iraq,
which led to the capture of several al-Qaeda leaders,
echoed Soufan's sentiments. Alexander said, "I think
that without a doubt, torture and interrogation
techniques slowed down the hunt for Bin Laden."
Both Senators
John McCain (R-Arizona) and Dianne Feinstein
(D-California) said that torture did not lead us to Bin
Laden. The United States located Bin Laden with
traditional interrogation methods over several years.
When I
testified in 2008 before the House Judiciary Committee's
Subcommittee on the Constitution, Civil Rights, and
Civil Liberties about Bush administration interrogation
policy, one of the Republican congressmen asked me how I
would fashion an interrogation statute. I replied that
it would require humane, kind, respectful treatment to
develop trust. As the questioner sniggered,
international law expert Professor Philippe Sands, who
also testified on the same panel, said I was correct,
that the British got much better intelligence from the
Irish Republican Army when they used humane techniques.
Torture is also
counter-productive. Former Navy General Counsel Alberto
Mora testified before Congress that the two most
effective recruiting tools for those who would do harm
to US soldiers in Iraq were Abu Ghraib and Guantánamo.
When people see the US government torturing detainees
from their countries, they resent us even more.
Indeed, an
interrogator who served in Afghanistan, told Forbes, "I
cannot even count the amount of times that I personally
have come face to face with detainees, who told me they
were primarily motivated to do what they did, because of
hearing that we committed torture.... Torture committed
by Americans in the past continues to kill Americans
today."
Trump
Cabinet Nominees Claim to Oppose Torture
Several of
Trump's cabinet nominees were asked about waterboarding
and torture during their confirmation hearings. Although
some were on record favoring torture in the past, all
declared their opposition to it, saying it was illegal.
Rep. Mike
Pompeo (R-Kansas), Trump's pick for CIA Director, has
defended the use of waterboarding, saying that while
torture was illegal, waterboarding was not torture. He
criticized the 2014 Senate report, saying, "These men
and women are not torturers, they are patriots." Pompeo
opposed closing the CIA's "black sites" where the Bush
administration plied torture.
But when asked
at his hearing whether he would allow "enhanced
interrogation techniques" (a euphemism for torture) to
be used if so ordered by Trump, Pompeo categorically
replied, "Absolutely not." He added, however, "I can't
imagine I would be asked to do that by the
president-elect."
In his written
answers to Senate Intelligence Committee queries, Pompeo
was not so absolute, leaving open the possibility that
the Trump administration would use torture. Pompeo wrote
that he would ask CIA agents whether the limitations in
the Army Field Manual constitute "an impediment to
gathering vital intelligence to protect the country."
Attorney
General nominee Jeff Sessions has supported
waterboarding, saying "it worked" in extracting
information. But he admitted in his testimony that "waterboarding
or any other form of torture is absolutely improper and
illegal" as Congress has outlawed it, although he voted
against that legislation.
The Office of
Legal Counsel (OLC) is a division of the Department of
Justice, which provides legal advice to the president
and all the executive branch agencies. As head of the
Justice Department, Sessions would oversee and have the
power to replace the head of the OLC. It was OLC
lawyers, including notably John Yoo and Jay Bybee, who
wrote memos advising the Bush administration how to
illegally torture people and get away with it.
Secretary of
State nominee Rex Tillerson testified that he opposes
torture.
Although the
International Committee of the Red Cross described
interrogation techniques used at Guantánamo as
"tantamount to torture," Department of Homeland Security
Secretary Gen. John Kelly said that criticism of
detainee treatment was "foolishness." Kelly, a former
Marine, oversaw interrogations at Guantánamo.
Kelly defended
the force-feeding of hunger strikers at Guantánamo, a
practice the UN Human Rights Commission called torture.
"After a mass of hunger strikes that were threatening to
destabilize the prison, [Kelly] engaged in a retributive
campaign, including aggressive force-feeding and
solitary confinement to punish strikers," UN Special
Rapporteur on Torture Juan Mendez said.
At his hearing,
however, Kelly stated he "absolutely" would abide by US
laws prohibiting waterboarding and torture.
Gen. James
Mattis, Trump's new Secretary of Defense, opposes
torture because it doesn't work.
Trump told The
New York Times that when he asked Mattis what the
general thought of waterboarding, Mattis replied, "I've
never found it to be useful. I've always found, give me
a pack of cigarettes and a couple of beers and I do
better with that than I do with torture." Trump was
"very impressed by that answer. I was surprised, because
[Mattis is] known as being like the toughest guy."
Eliot Cohen, a
former senior official in the George W. Bush
administration, told the Senate Armed Services Committee
that "[Mattis] would refuse to comply" with a
presidential order to torture.
But Trump said
if Americans feel strongly the US government should
bring back waterboarding and other torture techniques,
"I would be guided by that."
Torture
by the Bush Administration
In late 2014,
the Senate Select Committee on Intelligence released a
499-page executive summary of its 6,700 page classified
torture report, which says several detainees were
waterboarded. One detainee in CIA custody was tortured
on the waterboard 183 times; another was waterboarded 83
times.
The summary
states that the CIA used "rectal feeding" without
medical necessity on prisoners. A mixture of pureed
hummus, pasta and sauce, nuts and raisins was forced
into the rectum of one detainee. "Rectal rehydration"
was also utilized to establish the interrogator's "total
control over the detainee."
Other "enhanced
interrogation techniques" documented in the summary
included being slammed into walls, hung from the
ceiling, kept in total darkness, deprived of sleep --
sometimes with forced standing -- for up to seven and
one-half days, forced to stand on broken limbs for hours
on end, threatened with mock execution, confined in a
coffin-like box for 11 days, bathed in ice water,
dressed in diapers. One detainee "literally looked like
a dog that had been kenneled."
The summary
contains example after example of why "the use of the
CIA's interrogation techniques was not an effective
means of obtaining accurate information or gaining
detainee cooperation." It says: "Multiple CIA detainees
fabricated information, resulting in faulty
intelligence... on critical intelligence issues
including the terrorist threats which the CIA identified
as its highest priorities." Yet the CIA had continually
lied that the techniques "saved lives."
Shortly before
the report summary was made public, Obama stated, "We
did a whole lot of things that were right" after 9/11,
"but we tortured some folks."
The
interrogation policy that permitted torture and abuse
came from the top. Bush, Dick Cheney, Condoleezza Rice
and John Yoo admitted they participated in decisions to
subject prisoners to waterboarding.
In a practice
called extraordinary rendition, the CIA sent men to
other countries where they were viciously tortured, in
violation of the Torture Convention.
Yet the Bush
administration's legal mercenaries, including Yoo and
Bybee, wrote memos with twisted reasoning that purported
to justify torture, and advised high government
officials how to avoid criminal liability under the US
War Crimes Act.
Those who
engaged in hunger strikes were brutally force-fed, a
practice that the United Nations Human Rights Commission
called torture. Force-feeding continued under Barack
Obama.
Obama
Refused to Fulfill His Constitutional Duty to Prosecute
Torturers
In 2005,
Congress passed the Detainee Treatment Act, which
prohibits cruel, inhuman or degrading treatment or
punishment of anyone in the custody of the US
government, including prisoners at Guantánamo. The act
also restricts interrogation techniques to those allowed
by the Army Field Manual.
One of Obama's
first acts as president was to order that no government
agency would be allowed to use interrogation methods,
including waterboarding, not listed in the Army Field
Manual.
He stated, "I
will continue to use my authority as president to make
sure we never resort to those [torture] methods again."
Yet Obama has
consistently refused to hold the officials who
authorized torture during the Bush administration
legally accountable, despite his constitutional duty to
"take care that the laws be faithfully executed."
Gen. Barry
McCaffrey noted, "We tortured people unmercifully. We
probably murdered dozens of them during the course of
that, both the armed forces and the CIA." Maj. Gen.
Antonio Taguba, who directed the Abu Ghraib
investigation, wrote,
"there is no longer any doubt as to whether the [Bush]
administration has committed war crimes. The only
question that remains to be answered is whether those
who ordered the use of torture will be held to account."
The answer to
Taguba's question is a resounding "no."
Obama said, "My
view is also that nobody's above the law and, if there
are clear instances of wrongdoing, that people should be
prosecuted just like any ordinary citizen. But," he
added, "generally speaking, I'm more interested in
looking forward than I am in looking backwards."
Eric Holder,
Obama's attorney general, investigated only two of the
most egregious instances of torture, the deaths of Gul
Rahman and Manadel al-Jamadi, stating that his
Department of Justice "determined that an expanded
criminal investigation of the remaining matters is not
warranted."
Rahman froze to
death in 2002 after being stripped and shackled to a
cold cement floor in the secret Afghan prison known as
the Salt Pit. Al-Jamadi died after he was suspended from
the ceiling by his wrists, which were bound behind his
back. MP Tony Diaz, who witnessed al-Jamadi's torture, said that
blood gushed from his mouth like "a faucet had turned
on" when he was lowered to the ground. A military
autopsy concluded that al-Jamadi's death was a homicide.
Nevertheless,
Holder ultimately refused to prosecute the Bush
officials responsible for the torture and deaths of
those two men.
Last fall, an
International Criminal Court prosecutor said there was a
"reasonable basis" to open investigations into the war
crime of torture in detention facilities run by the CIA
and the US military in Afghanistan.
The Obama
administration's refusal to bring the torturers to
justice sends a clear message to future administrations
-- including the incoming one -- that they can use
torture with impunity.
Moreover, if
the United States does return to the bad old days of
torture, "what kind of message would that be to the
world?" asked Nils Melzer, UN special rapporteur on
torture. "If the United States does it, those other
countries will know they can get away with it. The last
thing the world needs is a US president legitimizing
this."
The views
expressed in this article are solely those of the author
and do not necessarily reflect the opinions of
Information Clearing House. |
