Can Trump Bring Back Torture?

It will take more than the executive branch to revive the practice.

Joshua Roberts / Reuters

The Trump administration is looking into bringing back torture, according to a draft order published by the The New York Times and the The Washington Post on Wednesday. The draft order would also open up the detention camp at Gitmo for new detainees, rescind an Obama-era directives confining interrogations to techniques in the Army Field Manual and giving the Red Cross access to all detainees held by the United States.

The draft order, in which words like “jihadist,” “terrorist,” and “nation” are crossed out and replaced with “radical Islamism” and “homeland” respectively, directs national security officials to “recommend to the president whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States.”

Torture was a key part of Trump’s national-security platform as a candidate. He publicly defended torture on the trail, proclaiming that “torture works” and  “only a stupid person would say it doesn’t work.” Even if it didn’t work, Trump concluded, “they deserve it anyway, for what they’re doing.”

White House Press Secretary Sean Spicer’s careful non-disavowal during the daily press briefing Wendesday was that the memo “is not a White House document” and that he has “no idea where it came from.” Both of those things can be true without the document itself being illegitimate––the document could be the product of another executive agency or entity and Spicer himself could be unaware of its existence.

Trump however, cannot likely revive torture with an executive order alone. In 2015, the Senate attached an amendment to the 2016 National Defense Authorization Act that banned torture by limiting interrogation techniques to those in the Army Field Manual, as Obama’s 2009 executive order had done. The Senate vote was overwhelming, 78-21, especially considering that Republicans controlled the chamber at the time. Senator John McCain, himself a torture survivor, issued a public statement saying that, “the President can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America.”

Torture was also illegal when the Bush administration’s Office of Legal Counsel used what might be delicately called creative legal reasoning to interpret as lawful torture techniques the U.S. government wanted to adopt in its treatment of al-Qaeda suspects. Essentially, they argued that the president couldn’t be bound by laws restricting his ability to conduct military operations or defend the country.

But legal experts believe that this time, the legal language barring torture is close to ironclad, which means that Trump would most likely need an act of Congress to keep his campaign promises to do, in his words, “things that are unthinkable.”

Jack Goldsmith, a Harvard Law professor and former Bush Justice Department official, wrote on the legal blog Lawfare: “I am confident that the report that Trump gets from his top intelligence officials will advise him that a return to the bad old days is not legally available,” adding that “I am also confident that if President Trump ordered waterboarding, neither the CIA Director nor the Secretary of Defense would carry out the order.”

Similarly, Steve Vladeck, a professor of law at the University of Texas at Austin, wrote that while the order is “a really big deal,” there are now significant legal barriers set up by Congress and the courts to the resurrection of either the CIA’s “black site” network of secret torture chambers across the world, or the use of torture itself.

That doesn’t mean necessarily, that Trump couldn’t try to bring back torture unilaterally––but to do so he would have to rescind legal conclusions reached by the Justice Department’s Office of Legal Counsel at the end of the Bush administration and the beginning of the Obama administration. Not only that, but they would have to argue that the 2016 NDAA, enacted specifically to restrain the president’s authority to order people tortured, did not prevent the president from ordering people tortured.

“Formally they have the authority to do both of those things, but the optics of it would be so horrendous, even inside the government,” Vladeck told me. “There would surely be Justice Department lawyers who would resign in protest over the adoption of such a memo.”

The fear of a backlash both inside and outside the government might (emphasis on the might) restrain Trump.

“They can try to change the laws to bring back torture, but in doing so they'll face massive resistance among our military, intelligence, and law-enforcement communities,” said Raha Wala of Human Rights First. “If they want to ‘review’ these policies that's their prerogative, but there have already been enough reviews to determine that EITs have no place in American security policy.”

Indeed, despite Trump’s insistence that torture works, few matters have been more exhaustively researched by Congress.

The Senate Armed Services Committee published a review in 2009 that torture “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand ofour enemies, and compromised our moral authority.” The Senate intelligence committee published a report in 2014 that found the CIA mislead Congress and the White House about the effectiveness of torture and the cruelty of the methods used, and that an internal Agency review of the interrogation program found it to be ineffective. The CIA even spied on Senate investigators because they were so concerned that document, then known as the “Panetta review” after former CIA Director Leon Panetta, would get out.

Nevertheless, the Obama administration never prosecuted anyone for their involvement in the torture program, and blocked attempts by former detainees to sue in civil court. Human rights advocates warned at the time that the Obama administration’s decision could lead to a future president reviving the practice.

Goldsmith writes that he believes the backlash to torture “left a lasting scar” that would prevent anyone in the intelligence community or the military from agreeing to revive it, ultimately making the order a symbolic (which is not the same as insignificant) gesture that allows Trump to look tough and alarm his opponents without ultimately shifting policy on the matter.

Still, that may ultimately depend on Congress, and whether Trump is willing to expend political capital on reviving inhuman practices the United States government once deplored when used by its enemies.

Mike Pompeo, who was confirmed as CIA Director Monday with 15 crossover votes from non-Republicans, originally said in his confirmation hearing that he would "absolutely not" return to the use of torturous interrogation.

In a written follow-up, Pompeo offered a slightly different answer.

“If experts believed current law was an impediment to gathering vital intelligence to protect the country,” Pompeo wrote, “I would want to understand such impediments and whether any recommendations were appropriate for changing current law.”