"Enhanced interrogation" just does not work—but Trump and Cruz may know thatby Rupert Stone / February 10, 2016 / Leave a comment
In 1863, amidst the chaos of the American Civil War, Abraham Lincoln approved a new set of rules governing the conduct of the US Army. Penned by émigré law professor Francis Lieber, these standards ban the use of torture. “Military necessity does not admit of cruelty,” reads Article 16 of the so-called Lieber Code, “that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”
Lincoln, the first and most popular Republican president, was no softie when it came to war (indeed, Article 17 says “it is lawful to starve the hostile belligerent”), but his ban on torture was absolute and set the stage for later treaties covering the treatment of prisoners, such as the Hague and Geneva Conventions. How strange, then, that none of the current Republican presidential candidates wish to follow his example.
Jeb Bush, Ben Carson and Marco Rubio have all refused to rule out using torture on terror suspects, while Donald Trump has vowed repeatedly to reinstate waterboarding, a form of controlled drowning used by the CIA after 9/11 to extract information from captives. Until recently, only two contenders—Rand Paul and Ted Cruz—seemed to oppose torture, but Paul has dropped out of the race, and Cruz has changed his tune.
At last Saturday’s televised debate, Cruz was asked if he thought waterboarding constituted torture. “Well under the definition of torture, no it’s not,” he replied. “Under the law, torture is excruciating pain that is equivalent to losing organs and systems.” However, he would “not bring it back in any sort of widespread use,” only “if it were necessary to, say, prevent a city from facing an imminent terrorist attack.”
Cruz’s position is full of holes. His definition of torture bears no relation to existing standards, and comes instead from the early days of the Bush administration, when government lawyers tried to bend the law to allow for waterboarding and other enhanced interrogation techniques. For torture to occur, Bush’s lawyers argued in a 2002 memo, pain must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Unfortunately, for Cruz, that memo was retracted long ago, in 2004, and has been much criticized by legal scholars.
Moreover, both the current Attorney General, Loretta Lynch, and FBI Director, James Comey, have testified publicly that waterboarding amounts to torture (indeed, the US has prosecuted both its own and Japanese troops for waterboarding in the past). And, last but not least, a new statute passed by Congress last year, and co-sponsored by Senators Feinstein and McCain, specifically prohibits waterboarding and other harsh methods. Cruz voted for the law, as he said in the debate, but believes it only stops “line officers” from using harsh interrogation, leaving a loophole for exceptional circumstances. There is no such distinction in the statute, which bans torture by all US personnel, line officers or otherwise. Cruz seems to have minimal understanding of a law he himself supported (Senator McCain recently admonished the candidates for their comments on torture).
Anyway, if the US faced imminent attack, Cruz would invoke his “constitutional authority” as commander-in-chief to approve harsh interrogation. In other words, he would override federal law, just as George W Bush did when he authorized warrantless wiretapping after 9/11. Bush believed that the US Constitution allowed him to bypass the law in the interests of national security. But that view caused widespread controversy at the time, and relied on an extreme and eccentric interpretation of presidential power. Indeed, Bush eventually asked Congress to authorize the surveillance program in 2008.
Compared to Donald Trump, Cruz’s views are positively restrained. Trump has frequently supported torture and, at the debate, went further, saying he would bring back “a hell of a lot worse than waterboarding.” When Chuck Todd asked Trump on Sunday’s Meet the Press what he had in mind, he would not go into detail: thumbscrews, maybe, or the rack? And when CNN’s Jake Tapper pointed out that waterboarding was potentially a war crime under US law, he said he would have it “declassified.” But what if Congress and the Justice Department refused to approve the technique? And would the CIA really want to use waterboarding again, after all the controversy?
Besides, there is good reason to doubt the effectiveness of coercive interrogation. The US Senate Select Committee on Intelligence, in the executive summary of its massive report on the CIA’s interrogation program, released in 2014, found that waterboarding and other harsh methods failed to foil any attacks and produced no intelligence that could not have been gleaned from softer tactics. Many experienced interrogators reject torture as a means of extracting intelligence, and research into interrogation techniques overwhelmingly suggests that non-coercive measures are more effective than stress-inducing techniques. This week, A study by the National Academy of Sciences found that people undergoing sleep deprivation (another of the CIA’s interrogation techniques) were far more likely to sign false confessions. A new book by the neuroscientist Shane O’Mara, Why Torture Doesn’t Work, amasses a huge amount of scientific evidence to show how torture produces bad intelligence by impairing the cognitive faculties of those subjected to it.
These practical and legal questions are of course off the table in the Republican race, which is heavy on bluster and light on serious political debate. It is highly unlikely a future president would reauthorize waterboarding, given the numerous legal impediments to its use. When Mitt Romney considered reintroducing enhanced interrogation techniques during his 2012 bid for the White House, former Bush Justice Department official and Harvard law professor Jack Goldsmith asserted that the likelihood of such a move was “nil.” “There are many reasons for this,” Goldsmith wrote, “including bureaucratic resistance, but the main one is that such techniques are now indisputably illegal.” And that was before McCain’s and Feinstein’s new law.
It is possible the candidates don’t really mean what they’re saying, and this is all a cynical ploy to drum up votes. Cruz has changed course on torture, presumably to compete with Trump, the frontrunner. Marco Rubio slammed Obama for trying to close Guantanamo. “We should be putting people into Guantanamo,” Rubio said at the debate, “not emptying it out.” However, this, too, is an absurd proposal. As the legal expert Ben Wittes wrote recently, it might be easy to send prisoners to the Cuban base, but it is hard to get them out: Congress has blocked transfers of Guantanamo prisoners to the US, and it is difficult and time-consuming to move them to third countries. Those few who can be tried must face the hopelessly slow and dysfunctional military commission procedure. The Obama administration is currently stuck with a bunch of prisoners who, it claims, cannot be charged or released, and must rot in indefinite detention. Guantanamo has been a policy nightmare for successive administrations, so why would any future president choose the same ordeal?
Rubio’s comments were met with raucous cheers from the audience. But, if he, or any of the other candidates, are elected later this year, it will be hard to make good on their promises.