By Ian Jones-Muniz
Over the course of Donald Trump’s campaign, the President-elect has made clear that he intends to revive Bush-era enhanced interrogation techniques (EIT), widely labeled as torture. Specifically, Mr. Trump has touted support for waterboarding, stated “torture works” (EIT advocates specifically avoid the term ‘torture’ as it is an unequivocal violation of domestic and international law), and that the US must “do things that are unthinkable” to elicit intelligence from detainees, despite the Senate Select Committee on Intelligence concluding the opposite.
With a Congress strongly positioned against EITs, how realistic is a revival of the program?
Since 2006, detainee interrogation techniques are outlined in Army Field Manual 2 22.3 (Manual) and provide methods for human intelligence collection that do not violate the US Constitution or any international treaties. After 9/11 and well before the Manual, President Bush approved EITs for al-Qaeda, Taliban, and associated forces captured in Afghanistan (later expanded to Iraq and other countries) after a memo from Jay Bybee, then an attorney in the Office of Legal Counsel, concluded that such detainees were not considered POWs and the Geneva Conventions protecting POWs (GPW) did not apply to them. With the GPW suspended in early 2002, the Bush administration approved EITs for use on detainees in US custody at Guantanamo Bay (GTMO), Cuba, and US military and intelligence locations around the world. The CIA and DOD conducted the program until 2009 when President Obama, on his second day in office, issued Executive Order (EO) 13491 and prohibited interrogation techniques not included in the Manual.
For Mr. Trump to revive the EIT program, he will need to take the following steps:
- Repeal President Obama’s EO 13491 – EO 13491 revoked President Bush’s EO 13440, which provided executive authorization for suspending the Geneva Conventions and broadly stated the responsibilities for the Director of the CIA in dealing with detainees. By revoking President Obama’s order, Mr. Trump may resuscitate the directives outlined in EO 13440 and again grant authority to the CIA and DOD to conduct the program. Mr. Trump has promised to “cancel every unconstitutional executive . . . order issued by President Obama.” Although the constitutionality of EITs argument has been largely settled, one should assume that, in this case, revocation would apply to EO 13491.
- Review and Revise the Manual – Per the Anti-Torture Amendment discussed below, interrogation techniques must adhere to Manual guidelines and the Manual must be reviewed every three years to ensure compliance with US legal obligations. The review includes a report by the “High-Value Interrogation Group” (Group), an interagency body comprised of the Secretary of Defense, Director of National Intelligence, Attorney General, and “other appropriate officials.” Group members are presidential appointees and may recommend amending the Manual to authorize the “best practices for interrogation that do not involve the use of force.”
- Access the Purse – For detainees in DOD custody, Senators and John McCain (R-AZ) and Dianne Feinstein (D-CA) introduced an amendment to the National Defense Authorization Act for FY 2016 and built a wall around the purse to prevent access for this specific purpose. The McCain-Feinstein Anti-Torture Amendment provides, inter alia, that the Manual be followed for interrogations. The Manual prohibits “cruel, inhuman and degrading treatment” of detainees, a phrase indicating interrogation practices that do not rise to the domestic or international definitions of torture and were the standard of EITs from 2002-09. If EIT’s are revived, the Anti-Torture Amendment places a clear prohibition of the practice on detainees in DOD custody, but Mr. Trump would be in compliance with the amendment if successfully able to introduce EITs to the Manual through the Group, as discussed above.
For detainees in CIA custody, Mr. Trump will need to find authorization for his budget proposal from both the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. In the Senate committee alone, seven of the 19 members co-sponsored the McCain-Feinstein Anti-Torture Amendment, including the amendment’s namesake Senators. Additionally, this committee released the so-called “Torture Report,” which found the CIA’s use of EITs “was not an effective means of acquiring intelligence or gaining cooperation from detainees.” While the committee membership that produced the report has shifted since the 112th Congress, Dianne Feinstein (D-CA) remains Vice Chair. In short, Mr. Trump will face an uphill battle in pursuit of budgetary approval for CIA activities that include EITs.
If Mr. Trump pursues an EIT program, he will not find the process so easy as simply deciding to revive the practice. First, waterboarding is considered a torture technique, as will be the case for whatever methods he considers to “much worse.” Second, GTMO no longer serves as the legal black hole for detainees it did prior to a series of landmark Supreme Court rulings; this may indicate utilization of extraordinary rendition by the CIA as an alternative to DOD detention. Third, there is now a robust civil society and NGO community pitted against torture and prepared to battle against a new EIT policy. This community was far smaller and in the dark when President Bush quietly approved EITs in 2002, but it is unlikely that an EIT policy will get by under their noses again.