Donald Trump Wants to Make America Torture Again
A Trump administration could take the United States back to the darkest days of the Bush administration.
By Anthony D. Romero, ACLU Executive Director
The following is a section of a longer piece analyzing the constitutionality of some of Donald Trump’s policy proposals. Click here to read “Donald Trump: A One-Man Constitutional Crisis” in full.
“He may be talking, but he’ll talk faster with the torture.”
Donald Trump wants to make America torture again.
“I love it. I love it, I think it’s great,” Donald Trump said earlier this year, describing his enthusiasm for waterboarding, otherwise known as simulated drowning.
In addition to declaring his affection for the barbaric practice, which he has referred to as “minimal torture,” Donald Trump has vowed to “absolutely authorize something beyond waterboarding.” He has also said he would authorize torture in a manner that would comply with controlling “laws and treaties.” And if that doesn’t work — and it couldn’t — a President Trump would seek to change the laws to permit torture.
In other words, Trump wants to take the United States back to the darkest days of the Bush administration, when our country flouted more than three centuries of Anglo-American jurisprudence, which rejected the use of torture and cruelty as a means of extracting information or inflicting punishment. This rejection is firmly enshrined in the Constitution, domestic law, and international law.
That torturing people again is even on the agenda is nothing short of an abomination. It’s important to remember the brutality of the Bush administration’s euphemistically named “enhanced interrogation techniques” that Trump wants to resurrect. These were a set of techniques designed and implemented with the goal of psychologically destroying detainees in CIA custody.
Interrogators in CIA prisons kept detainees awake and standing in painful positions for days at a time, doused them with ice water, slammed them into walls, waterboarded them, and more. The techniques were used together in rapid succession, interspersed with aggressive interrogation sessions, in the name of an invented and unscientific theory positing that reducing detainees to a state of utter passivity could result in useful intelligence — which it didn’t.
Imagining Trump attempting to reinstate torture as policy is a nightmarish proposition. Thankfully, a web of domestic and international laws — compounded by the lessons of our recent, and catastrophic, experiment with state torture — ensures he would fail.
Torture is a clear violation of our Constitution. Courts have recognized that the Fifth Amendment’s due process clause bars treatment that “shocks the conscience,” including interrogation by torture. And the infliction of torture as punishment violates the Eighth Amendment’s prohibition on “cruel and unusual punishment” and has been explicitly prohibited since the 19th century. The torturer, a U.S. appeals court recognized in 1980, is “like the pirate and slave trader before him . . . an enemy of all mankind.”
Congress has also registered its collective disgust at torture and demonstrated the need for accountability. The international legal prohibition of the practice was enshrined in domestic law when the United States signed and ratified the Convention Against Torture decades ago. When President Ronald Reagan sent the convention to the Senate, he wrote that the Senate’s consent to ratify would “demonstrate unequivocally our desire to bring an end to the abhorrent practice of torture.” Federal statutes barring or criminalizing torture and cruel treatment include the Torture Convention Implementation Act, the Torture Victim Protection Act, the War Crimes Act, the Detainee Treatment Act of 2005, and the 2016 National Defense Authorization Act.
International law is explicit that the absolute ban on torture also applies in wartime. Common Article 3 of the Geneva Conventions bars torture and also requires that detainees “shall in all circumstances be treated humanely” and prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.”
The Convention Against Torture likewise provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The Supreme Court’s recognition in 2006 that that these protections apply to detainees held by the United States played a critical role in reining in abuses at Guantánamo and at CIA and military prisons abroad.
To evade these many prohibitions, the Bush administration performed a complex set of now-notorious legal gymnastics to redefine torture and sidestep the ban. In a series of secret memos that have since been widely denounced, the U.S. government employed deceptive interpretations of the law to unmoor the country from its domestic and international commitments.
It would take years for the American public to learn the contours of what the CIA and military did in secret. Once they did, the program began to contract — as it happens when illegality emerges from the darkness in a democracy. Bipartisan laws have passed to prevent a return to torture and the shame it wrought on our country. The memos were withdrawn and widely disavowed. When Barack Obama took office, he officially put an end to the program.
Trump, however, wants to embrace the dark side once again.
When asked about how he would have treated one of the suspects in the Paris attacks of November 2015, Trump told CNN, “He may be talking, but he’ll talk faster with the torture.” This ignores the fact that the only things torture guarantees are pain and false information. The landmark Senate torture report released in December 2014 made clear that no actionable intelligence resulted from the torture of more than 100 men in CIA custody.
While the Bush administration relied on secret legal interpretations in order to torture, Donald Trump is far more upfront about his intentions. Thankfully, the ban on torture is built to withstand both sophisticated contortions and explicit, brutish disregard.
It’s not up for debate, no matter how much Trump talks about his love for waterboarding.
