Trump faces obstacles to resuming waterboarding

In the first few months of Donald Trump’s presidency, if recent history is any guide, intelligence officials will meet to discuss a terrorism suspect living abroad. This suspect might become the next target for the nation’s not-so-secret drone force. Or maybe, Trump’s advisers could decide, he is worth trying to capture.

Under President Barack Obama, security officials have followed a familiar script once they have taken someone into custody. They ask an allied country to conduct the interrogation, or instead question the suspect aboard a U.S. warship using military interrogation techniques, then turn him over to the Justice Department for prosecution in a civilian court inside the United States.

Trump's campaign promise

Trump campaigned on a promise to bring back waterboarding, a banned method previously used by CIA interrogators, and allow unspecified practices he called “a hell of a lot worse.” Trump said in an interview last week that he had heard compelling arguments that torture was not effective, though it is not clear whether he intends to retreat from his position.

If he moves ahead to fulfill his campaign pledge, it will not be easy. Federal law, international pressure and resistance from inside the CIA stand in his way. Even if he overcomes those obstacles, the toll of America’s agonizing treatment of captives has left a legacy of harm that will make it harder for Trump administration lawyers to justify resuming use of the tactics.

Dozens of prisoners developed persistent psychological problems after enduring torture and other brutal interrogation tactics in secret CIA prisons or at the military detention center in Guantánamo Bay, Cuba, The New York Times has reported. In authorizing waterboarding, dousings with ice water, sleep deprivation and other techniques more than a decade ago, government lawyers reasoned that there would be no lasting damage to prisoners, a key factor in concluding the tactics did not qualify as torture.

'Legal landscape has changed'

That argument would be difficult to make now, according to lawyers and former intelligence and other government officials.

“The entire legal landscape has changed,” said Daniel Jones, a former FBI analyst and the primary author of a 2014 Senate report that condemned so-called enhanced interrogation techniques and found them ineffective in producing intelligence. “The publicly known facts now are just too conclusive and widely known,” he added, “to call for a return to waterboarding.”

Alex Whiting, a Harvard Law School professor and former war crimes prosecutor, said much has changed since 2002, when Justice Department lawyers accepted CIA assurances that there would be no long-term consequences for prisoners. “Evidence showing that the techniques employed by U.S. officials after 9/11 resulted in lasting psychological trauma will make it much more difficult for future lawyers to sanction these techniques as not amounting to torture,” he said.

Even lawyers and former senior officials who supported the interrogation program years ago now say the obstacles are too great. “Restarting this would be extraordinarily difficult,” said John Rizzo, who served as the CIA’s top lawyer during much of President George W. Bush’s administration.

Rescinding the Obama order

Obama, in one of his first acts as president, issued an executive order banning many of the harshest interrogation techniques and prohibiting the CIA from running secret prisons. Trump would need to rescind that executive order as a first step.

That would allow the CIA to once again open secret prisons overseas. The interrogation tactics, though, would still be limited. Congress overwhelmingly enacted a law last year that allowed U.S. interrogators to use only those techniques authorized in the Army Field Manual, which does not include harsh coercive methods.

Trump does wield executive muscle

Trump administration lawyers could try to get around that prohibition by arguing that the president has broad constitutional power as commander in chief to decide how to interrogate prisoners and that Congress cannot tie his hands. That claim served as the foundation of the Bush administration’s torture program, even though many legal specialists later denounced it as going too far.

Trump could also order the Defense Department to revise the Army Field Manual to authorize harsher techniques. “If the order comes down the chain of command in the Pentagon to revise that document and add in an opening to use enhanced-interrogation techniques, what prospect would there be for resistance to that decision?” said Robert M. Chesney, a professor at the University of Texas School of Law. “That’s a moral and ethical and political choice.”

Such a change would almost certainly set up a showdown with Congress about the law’s intent. When lawmakers passed it last year, they required a periodic review of the field manual to ensure that interrogations “do not involve the use or threat of force.”

McCain adamant — 'We will not torture'

Any such efforts to allow use of brutal treatment would mean taking on Sen. John McCain, R-Ariz., who was subjected to horrific abuses decades ago as a prisoner of war in North Vietnam and has been an outspoken opponent of any U.S. use of such treatment. McCain has pledged since the election to stop Trump from trying to circumvent congressional anti-torture restrictions.

“I don’t give a damn what the president of the United States wants to do, or anybody else wants to do. We will not waterboard,” McCain said. “We will not torture.”

Sen. Reed: 'We have the law with us'

Sen. Jack Reed of Rhode Island, the highest ranking Democrat on the Senate Armed Services Committee, said in an interview that he and McCain, the committee’s chairman, are confident that the statutory restrictions on the use of torture are strong. “The chairman and myself have made it very clear our position and we feel we have the law with us.”

Even if Trump could find a legal workaround to this law, he would have to address international treaties requiring humane treatment of prisoners. When it established the interrogation program, the Bush administration relied in part on theories that those treaties did not apply to U.S. conduct in overseas prisons. But legislation in 2005 and 2006 and a landmark Supreme Court ruling in 2006 tightened that potential loophole. Still, Trump’s lawyers could revive the Bush era claims of executive power to bypass treaty constraints.

How culture has changed at the CIA

Other obstacles also stand in the way of a new CIA interrogation program. The fallout from the old program took a personal toll on senior CIA officers who were subjected to years of investigations and worried about criminal prosecution. The opposition to a return to brutal methods is so strong at the agency that Michael Hayden, a former CIA director, says Trump should “bring his own bucket” if he wants to bring back waterboarding, which induces the sensation of drowning.

Trump will also find health professionals far more reluctant to participate than they were years ago, when psychologists helped develop tactics for interrogations and supervised sessions. In 2015, the American Psychological Association banned involvement by psychologists in national security interrogations. The American Medical Association and the American Psychiatric Association have strict anti-torture prohibitions.
Code of ethics

Inside the Pentagon, a medical ethics task force last year recommended new rules that would allow U.S. military health care personnel to avoid involvement in activities like interrogations that violate their conscience or the ethical standards of their professions.

The rules have not yet been formally accepted and implemented, according to Adil E. Shamoo, a professor at the University of Maryland School of Medicine and chairman of the medical ethics subcommittee for the Defense Department’s health advisory board. But the recommendations nonetheless reveal the depth of the opposition to a return to the use of torture.

“The view of the medical profession is so clear now,” said Leonard Rubenstein of the Berman Institute for Bioethics at Johns Hopkins University. “There is no ambiguity anymore about what the rules are.”

Other nations shun secret prisons

Trump would most likely also find it harder to find international partners willing to host secret prisons. Criminal investigations were conducted in Poland and Lithuania over secret CIA prisons there. And while the inquiries did not lead to prosecutions, they could have a chilling effect on future cooperation.

Italian prosecutors won convictions in absentia of more than 20 Americans involved in a 2003 CIA abduction of a terrorism suspect from Italy to Egypt for interrogation. A court in Portugal, where one of the Americans lives, ruled this month that she could be extradited to Italy.

A prosecutor with the International Criminal Court announced several weeks ago that there was a “reasonable basis” to open investigations into war crimes of torture and related ill-treatment in detention facilities run by the U.S. military and the CIA in Afghanistan. While the United States is not bound by the court, Afghanistan is a member, and a lengthy investigation into U.S. actions there could make it much less likely that Afghanistan would allow the CIA to set up secret prisons again.

Nathaniel A. Raymond, director of the Signal Program on Human Security and Technology at Harvard University’s Humanitarian Initiative, said of the CIA: “The location shell game they used before has collapsed.”

Trump could erase Obama script

In recent years, the Obama administration has used criminal courts in the United States to prosecute those accused of terrorism, convicting a Somali man linked to al-Qaida, two men fighting for al-Shabab, a would-be suicide bomber aboard an airplane and others. Ahmed Abu Khatalla, who is suspected of being the ringleader of the 2012 attacks that killed four Americans in Benghazi, Libya, is scheduled to stand trial in Washington next year.

None of this is to say that, when Trump has an opportunity to capture a terrorism suspect, he has no choice but to follow Obama’s script. His administration could start sending prisoners to Guantánamo Bay again, which held close to 700 men at its peak and is now down to 60. While U.S. counterterrorism officials say key foreign partners will not share intelligence or otherwise participate in operations that result in sending prisoners to Guantánamo, nothing would legally preclude it.

Mattis left impression on Trump

After months of telling Americans that he would bring back waterboarding — “Believe me, it works,” he said — Trump may be reconsidering his stance. In an interview with The New York Times last Tuesday, his only comments on the issue since the election, Trump said he discussed the matter with James N. Mattis, a retired Marine Corps general who is under consideration for defense secretary. Like most U.S. military leaders, he is opposed to the use of torture.

“I said, ‘What do you think of waterboarding?'” Trump said. “I was surprised. He said, ‘I’ve never found it to be useful.’ He said, ‘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.’ And I was very impressed by that answer.”

But Trump did not close the door entirely. If the U.S. people feel strongly about bringing back waterboarding and other tactics, he said, “I would be guided by that.”

Reporting was contributed by Sheri Fink from New York, and Helene Cooper, Charlie Savage, and Jennifer Steinhauer from Washington.

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