During his campaign for president, Donald Trump was unambiguous in his belief that “torture works” and seemed eager to bring back waterboarding and “a hell of a lot worse than waterboarding.” His glib rhetoric stood out even among defenders of George W. Bush–era “enhanced interrogation” techniques, most of whom express their support for waterboarding via their chosen rationalization that it is not, in itself, torture. Trump’s election, though, raises the possibility that torture could come back into use. If this does happen, at least some of the responsibility will fall on the Obama administration’s reluctance to hold American perpetrators of torture accountable for their actions.
A 2015 Amnesty International report warned of just this scenario, arguing that Obama’s desire to move on, rather that “refight old arguments,” would create a culture of impunity that “increases the risk that history will repeat itself when a different president again deems the circumstances warrant resort to torture, enforced disappearance, abductions or other human rights violations.”
Naureen Shah, director of Amnesty USA’s Security and Human Rights Program, told me Tuesday that “we’re in a dangerous place right now, and I think it’s because people weren’t held accountable for torture. What happened over the last eight years is that the people who had come out of the Bush administration, instead of feeling like they were at risk of being prosecuted, went on a PR rampage to celebrate their role in torture. Instead of being on the defensive, they were on the offensive.”
While the use of “enhanced interrogation” was barred by executive order under Obama in 2009, and there’s no evidence that this order was violated by U.S. personnel, the administration did leave in place much of the legal architecture that allows torture to take place, including the secret detention and interrogation of terror suspects before they’re turned over to the civilian justice system, and the transfer of suspects to detention in countries with dubious human rights records—particularly Afghanistan. And of course, the detention facility of Guantánamo will still be open when Obama leaves office, and his successor has promised to “load it up with bad dudes.”
So far, the signals out of the incoming administration are not good: Vice President Mike Pence has refused to rule out the use of waterboarding under the Trump administration. Trump’s pick for CIA director, Mike Pompeo, is a defender of these techniques, calling the methods described in the 2014 Senate torture report (which, to refresh your memory, included medically unnecessary “rectal feeding” and a detainee who died of hypothermia after being chained half-naked to a concrete floor) “within the law.” Trump’s pick for attorney general, Jeff Sessions, is one of 21 senators who voted against an amendment sponsored by John McCain and Dianne Feinstein last year that expressly banned interrogation techniques, including waterboarding, not covered in the U.S. Army Field manual.
On Saturday, McCain (whose experience as a victim of torture in Vietnam was famously downplayed by Trump) was adamant, in remarks at a defense conference in Canada, that waterboarding, or any form of torture, would not be allowed to resume:
If [any agency of government] started waterboarding, I swear to you, there’s a whole bunch of us that would have them in court in a New York minute. And there’s no judge in America that wouldn’t say they’re in violation of the law because it’s specifically, in law, now prohibited. So 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, we will not torture, we will not torture people … it doesn’t work, my friends, it doesn’t work.
Thanks to the amendment he and Feinstein sponsored to the 2016 Defense Authorization Act, signed a year ago by Obama, there’s now specific legislation prohibiting techniques including waterboarding, sexual humiliation, hooding, beatings, mock executions, and inducing hypothermia. Shah says “legal gymnastics” would be required for the Trump administration to get around the law, but this has happened before and it’s certainly possible justifications could be found once again. And the use of torture is far more likely to take place in secret and be justified publicly much later, rather than announced and subject to public debate in advance.
“There was clear U.S. and international law already. They just wildly distorted the law, and they got away with it,” Shah says. “We know that when people are empowered to torture, they do.”