Editor's Note: A Trump presidency is disturbing on so many levels. One of the worst is his campaign's embrace of some of America's biggest mistakes, such as the use of torture to fight terrorism. Elizabeth Grimm Arsenault, my colleague at Georgetown, looks at Trump’s campaign rhetoric on this issue and the disturbing possibilities for his administration.
Among the troubling, bizarre, and uninformed foreign policy platforms of President-elect Donald Trump, one of the most frightening is his position on torture as a counterterror tool. The tool emerged more than 15 years ago in the climate of fear following the 9/11 attacks, in which the administration of President George W. Bush authorized the Central Intelligence Agency and Department of Defense to use a range of extraordinary techniques—many adapted from Chinese methods used against U.S. soldiers during the Korean War—to extract information from captured detainees. These techniques, some almost Orwellian in their creativity and cruelty, defied all legal and normative prohibitions in U.S. and international law. We now know that in the name of national security and intelligence gathering, techniques such as waterboarding, sleep deprivation, and ice water baths (among others) were approved. After public revelation of these practices, Congress banned procedures like waterboarding in 2005, and President Obama issued an executive order in 2009 to restrict all government employees, including CIA agents, to use only the techniques specified in Army Field Manual 2.22-3. Last year, the U.S. Senate passed a torture ban making Obama’s order law. This hard-fought progress to ensure legal and effective intelligence collection from detainees is now at risk.
Some observers have argued that no significant harms resulted from the torture decisions. However, these coercive practices diminished the ability of the United States to be a respected advocate for human rights around the globe. Even more significantly, the use of torture called into doubt the role of law in U.S. society and undermined the reputation of the government, thereby eroding public support for the war effort. The use of torture also undermined the U.S. quest for a rules-based international system by demonstrating that, as a powerful state, it could and would break widely-held norms when it viewed it as necessary to do so. In addition, the use of torture ruined the careers of allied political leaders, negatively affected the U.S. relationship with many allied governments, and led to a severe deterioration in the U.S reputation abroad. The greatest operational harm done by the decision to use torture was to the ability of the United States to collect intelligence. According to a 2008 Senate Armed Services Report, U.S. detention policy “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”
Most significantly, the issues that prompted the questioning of our treatment of prisoners in the first place...remained open.
Toward the end of the Obama administration, U.S. society found itself in an ambiguous place where the worst abuses of the Bush administration had been checked, but many of the grey spaces in law and policy that gave rise to the torture program were not resolved. Obama’s Executive Order 13491 closed the legal loopholes that permitted torture, but the broader question of how to handle detainees captured in a fight against terrorism continues to confound U.S. policymakers. Obama’s failed effort to close the prison at Guantánamo Bay served as a potent example of how the issue of detentions is far more complex than many of Bush’s detractors wished to admit. Congress—in particular, Congressional Republicans—have consistently fought to keep Guantánamo Bay open, stymieing Obama’s pledge from the earliest days of his presidency to close it. Most significantly, the issues that prompted the questioning of our treatment of prisoners in the first place—the applicability of international humanitarian law that was written in the age of conventional warfare, the extent of executive power, and the proper balance between security and liberty—remained open.
Enter the 2016 presidential election. Rather than condemning the abusive practices that fostered a range of foreign policy, operational, and strategic harms, some of the Republican presidential candidates enthusiastically sought to one-up one another in their advocacy for torture. President-elect Trump endorsed waterboarding as early as November 2015, saying, “If it doesn’t work, they deserve it anyway for what they’re doing.” While Sen. Ted Cruz defended waterboarding as an “enhanced interrogation technique” during the New Hampshire Republican primary, Trump went further and stated that he would “bring back a hell of a lot worse than waterboarding.” Trump’s embrace of war crimes only increased over the course of the election. He followed his performance in New Hampshire with an interview in South Carolina in February 2016, stating, “Waterboarding is fine, but it is not nearly tough enough.” In addition to his advocacy of torture, Trump has a well-documented stance on defeating the Islamic State through ordering the U.S. military to kill families of Muslim terrorists, a practice that falls under the definition of “collective punishment” banned by the Geneva Conventions. When it was raised during a debate that the U.S. military would refuse to follow these orders, he claimed, “If I say ‘do it,’ they’re going to do it.”
But our political climate right now is conducive to this normalization of torture due to two facts: the current strength of our presidency and the current stance of U.S. public opinion on torture.
Nominees for president often make claims that are not followed through after winning the election—this is a typical feature of all democratic systems. But our political climate right now is conducive to this normalization of torture due to two facts: the current strength of our presidency and the current stance of U.S. public opinion on torture. One of the enabling factors for the abuses committed in the early years of the George W. Bush administration was the conviction among the administration’s lawyers that in a time of war, there were few—if any—constraints on the power of the executive. In particular, these attorneys believed that the president’s power as commander-in-chief and his position as head of the unitary executive gave him wide latitude to set detention policy as he saw fit. In 2016, the continued tilt of national security powers toward 1600 Pennsylvania Avenue—with a unified Republican Congress—means that an executive with an interest in returning to those abuses will likely not be checked at the political level. While the strength of the U.S. bureaucracy can resist such a turn, President Obama’s reliance on executive orders in foreign policy means that many of his decisions can be undone unilaterally. The second enabling factor is the U.S. public’s embrace of these practices. When Cruz claimed that he would not bring waterboarding back in widespread use, he was roundly booed. Similarly, Trump’s statements in the South Carolina debate to “bring back a hell of a lot worse” and “I’d go stronger” were met with cheers, applause, and loud shouts of support. While shouts in favor of torture certainly exist at one end of the spectrum, a nationwide poll in December 2014 conducted by The Washington Post after the Senate Intelligence Report on U.S. detention practices was released showed more than half of all Americans believe that torture of suspected terrorists can be often or sometimes justified. The possibility of a terrorist attack on the homeland may further drive support for coercive interrogations measures.
In this culture of torture, we have a president-elect that said he would approve of methods that go beyond the coercive methods approved in the earlier years of the Bush administration. Will he repeal Executive Order 13491? Will his presidency constitute a threat to the safe functioning of the nation? While some observers hope that the reckless statements made during his candidacy will be tempered once he is in office, the combined strength of the presidency plus a public willing to endorse these actions renders a particularly dangerous possibility—that of using torture again as a counterterror tool and, in the process, eroding U.S. leadership, challenging the durability of international and domestic laws, and supporting the narratives of belligerents that oppose the United States.