Why It’s Looking Less and Less Likely that Trump Will Bring Back Waterboarding

With Trump’s national security team now in place, we are in a better position to consider his administration’s likely approach to interrogation. Bottom line: don’t panic, because the CIA probably won’t relaunch its torture program anytime soon.

The New York Times ran an interesting story earlier this week showing that Trump’s pick for Secretary of Defense, retired General James Mattis, has a long record of opposing torture. Mattis had already told Trump, at a meeting last December, that he never found waterboarding to be “useful”. And now, thanks to the Times, we learn that Mattis had cracked down on prisoner abuse while serving as a Marine commander in Iraq from 2003.

This could further complicate Trump’s campaign proposals to bring back enhanced interrogation techniques. Given what we know about Mattis’ views, and his tendency to speak his mind, it is hard to imagine him sitting idly by while the US again goes down the waterboarding route. But he might not have to protest, as the president-elect’s enthusiasm for torture seems to have dimmed anyway.

Even during the presidential campaign Trump eventually toned down his rhetoric. True, things got off to a ferocious start in 2015, when he vowed to bring back waterboarding and “a hell of a lot worse” because “torture works”. Faced with a barbaric enemy like ISIS, the US had no choice but to get its hand dirty. “I’d approve waterboarding in a heartbeat,” he said, and “if it doesn’t work, they deserve it anyway”.

But things changed in 2016 when Trump became the Republican nominee and squared off against Hillary Clinton. During the election campaign, he barely mentioned torture, once saying at a press conference that he supported enhanced interrogation but generally avoiding the topic. Then, after the election victory, Vice President-elect Mike Pence refused to explicitly endorse enhanced interrogation, suggesting that Trump’ tactics would be kept secret. And Mattis appears to have forced Trump to at least reconsider his pro-torture stance (although the president-elect claimed he had not changed his mind).

A policy shift was, perhaps, inevitable, as there are now many legal and political impediments to reinstating “enhanced interrogation techniques”. As Georgetown Professor David Luban points out, the US has multiple laws on the books preventing torture, including the federal torture statute and War Crimes Act, not to mention more recent legislation passed in 2005. True, George W Bush’s lawyers managed to interpret these laws narrowly so as to allow enhanced interrogation techniques, such as waterboarding, prolonged sleep deprivation, and other harsh measures, but their legal opinions were rescinded by Barack Obama in 2009.

Furthermore, a new law sponsored by Senators John McCain and Diane Feinstein places even tighter restrictions on prisoner abuse, and passed the senate with a strong bipartisan vote in 2015. It would be difficult for Trump to have that law repealed, given that McCain is currently chair of the Senate Armed Services Committee and exerts a lot of influence in Congress. Indeed, McCain has already vowed to fight Trump on this matter, insisting defiantly that “We will not waterboard!” His and Feinstein’s law restricts all US government interrogators to standards set down in the Army Field Manual, which bans waterboarding and other CIA techniques (despite still allowing other coercive methods, which I’ll be writing about later). If Trump wanted to reinstate enhanced measures, he could try to have the Manual rewritten, but with Mattis running the Pentagon, that might not be feasible.

Moreover, it is possible the CIA would not go along with a new torture program, given the risk of scandal and legal exposure for its officers. Former agency director Michael Hayden thinks that CIA personnel would refuse to participate, and outgoing chief John Brennan has urged Trump not to re-authorize waterboarding as such practices were “very, very damaging” to the agency’s reputation.

There are also international obstacles, as Harvard Law Professor Alex Whiting has emphasized. Any return to torture would likely be conducted overseas, and would necessitate the cooperation of foreign governments. After 9/11 a wide array of nations allowed the CIA to fly planes over their territory and/or detain captives in secret prisons. But since then the European Court of Human Rights has condemned Poland and Macedonia for their role in the CIA program, and further cases against Romania and Lithuania are pending. These rulings significantly constrain what European nations may be able to do in the future. In general, torture could undermine foreign cooperation in American counter-terrorism efforts. The Bush administration faced regular complaints from foreign countries about detainee abuse. Indeed, the issue became a diplomatic nightmare for the US. Does Trump really want to repeat that experience?

The International Criminal Court may provide a further deterrent, too, as it is now investigating possible US war crimes in Afghanistan (America is not a member of the ICC, but Afghanistan is). True, there are no doubt some countries that would participate in a revamped US torture program — the CIA apparently still has a prison in Somalia, for instance (and more about this in a later post) — but the list of willing partners might be short. Then there is likely pushback from the human rights community — NGOs, the United Nations, and so on. A new story in the Times by Sheri Fink and James Risen shows how concerned some figures in the human rights world are by Trump’s torture advocacy. Of course the US has ignored such criticism in the past, but a return to “enhanced interrogation” would likely generate intense opprobrium given the extreme nature of the tactics in question.

Even if Trump managed to surmount all these hurdles, he would probably face intense internal opposition from members of his own intelligence community. Experienced interrogators overwhelmingly repudiate torture as a means of gathering information. Veteran intelligence professionals have penned numerous public letters opposing coercion which they feel produces unreliable intelligence. US generals and admirals have done likewise: Mattis’ hostility to torture comes as no surprise, and is consistent with military culture. Even Trump’s hardline national security adviser, Lt. Gen. Michael Flynn, repeatedly condemned torture before signing on to the Republican’s campaign platform. Added to that, Trump clearly does not like the CIA and would presumably rather not give them a lead role holding and interrogating high-value detainees. Under Obama the military has gradually replaced the CIA as the lead agency that kills or captures terrorism suspects. And Trump may want it to stay that way, seeing as many of the prominent national security positions in his administration have gone to former military personnel (even his CIA Director, Mike Pompeo, is a former cavalry officer).

Then there’s a sizeable body of scientific literature on interrogation techniques, that has been growing steadily since Obama set up the High-Value Detainee Interrogation Group in 2009 to support such research (and interrogate terrorism suspects), which consistently shows that rapport-based forms of questioning are more productive than harsh methods. The science is supported by the executive summary of the Senate Select Committee on Intelligence’s study of the CIA program, which found that brutal interrogations foiled no plots and yielded no leads that were unavailable through softer tactics. While shows like 24 and Homeland might give off the impression that torture works, empirical evidence suggests otherwise. Bringing back torture to get information would fly in the face of scientific progress, like a modern doctor using leeches to treat migraines.

All this suggests that Trump will not bring back CIA torture. Never say never, of course, and if the president-elect really wanted to resuscitate enhanced interrogation, it could probably be done. But there might be other ways his administration could abuse prisoners, and I’ll consider some of these in due course.