There are many things about the incoming Trump administration to be deeply concerned about, but there is a set of issues that give all the others a more sinister timbre: those surrounding the Global War on Terror. The U.S. has elected a man who has promised to “bring back waterboarding [and] a hell of a lot worse than waterboarding.” Waterboarding is a method of torture which simulates drowning, notable for its use under the Khmer Rouge, Augusto Pinochet, apartheid South Africa, and the George W. Bush administration. Thanks to the insufficient progress made on torture under the Obama administration, President Trump — a man few would describe as embodying prudence and restraint — will be able to fulfill this promise with the snap of his fingers.
In theory, torture is illegal under both international and domestic U.S. law: the United States has signed and ratified the UN Convention Against Torture, which explicitly says that no exceptional circumstances whatsoever may be invoked as justifications torture. It also bans extradition to other countries when there are grounds for believing the person involved would be subjected to torture there, as well as compels legal action when instances of torture are discovered. And yet, the Bush administration not only tortured detainees in places such as Abu Ghraib and Bagram, but also renditioned suspected terrorists to countries such as Jordan, Syria, and Egypt to be tortured.
The key entity that allowed all of this to occur was the Office of Legal Counsel (OLC), an internal legal body that advises and offers legal interpretations of the law on behalf of the executive branch. After 9/11, OLC lawyers Jay Bybee and John Yoo — provided legal cover for torture with a memo that Jack Goldsmith, Attorney General under Bush, later described as “deeply flawed” and “sloppily reasoned.” The so-called “Bybee memo” and others are sometimes pointed to as a reason for not prosecuting those who tortured because the memos gave those executing the torture that they had legal justifications for their actions. Revelations have suggested, however, that the torture memos were often written concurrently with — or even after — instances of “aggressive interrogation.” A central problem here was the secrecy surrounding the crafting of these memos: the OLC operates in secret to protect the executive branch’s ability to ask for and receive candid legal advice, but in this case, that same secrecy allowed OLC lawyers to give legal sanction to abominable practices.
Obama issued an executive order rescinding all OLC memos on interrogation issued from 2001-2009, but that does not prevent a future president from ignoring or rescinding the Obama Executive Orders on torture. Significantly, according to Jack Goldmith’s 2004 Stellar Wind memo, the president need not even announce publicly that he is rescinding, suspending, or waiving previous Executive Orders, President Obama and Congress have yet to repudiate this line of legal reasoning. What this means is that neither Congress nor the public knows what rules the president is operating under — an especially dangerous situation with a president-elect who has demonstrated a remarkable disdain for the truth.
Likewise, the amendment in the 2016 National Defense Authorization Act, which has been touted as prohibiting torture, does not actually accomplish as much as has been claimed. For one, law enforcement personnel such as the FBI are not subject to the restrictions in the amendment. On top of this, the amendment does not absolutely ban torture but limits interrogators to the methods listed in the Army Field Manual. The problem with using the Army Field Manual revolves around a section called Appendix M, which is updated regularly while retaining the legal approval of the OLC. This means that the Trump administration’s Department of Defense could add “a hell of a lot worse than waterboarding” to Appendix M and it would still be legal according to the Trump administration’s Department of Justice.
In short, although both Obama and Congress have attempted to address torture, the core problems of executive secrecy and moral hazard remain unresolved. We must not lose sight, however, of how torture is not some abstract issue, like the ticking time-bomb scenario that’s often trotted out in “Intro to Ethics” courses, but an abhorrent practice that has irreparably damaged lives. It’s hard to review details of what happened in Abu Ghraib and Bagram and not feel disgust and outrage: there are stories of sexual brutality and humiliation, beatings (including punching a detainee in the chest so hard that the detainee almost went into cardiac arrest) and subjecting detainees to electric shocks as well as excessive heat and cold. In some cases, detainees died as a result of their treatment: in Bagram, two men had been hung by their arms from the ceiling and beaten to the point where, even had they lived, their legs would have required amputation.
It’s bad enough that Trump may bring back these methods, if not worse. But if we look at Trump’s priorities: law and order, immigration, and “fixing the inner cities,” I think its right to also worry about the scope of these policies under President Trump. It is not difficult to imagine torture — not to mention indefinite detention, extrajudicial killings, and surveillance — being used as tools to address those policy objectives under the Trump administration. Indeed, former Attorney General, Eric Holder, in a letter to Senator Rand Paul, wrote that while “unlikely to occur,” there are situations where “it would be necessary and appropriate…for the president to authorize the military to use lethal force within the territory of the United States.”
Under President Obama, many of us felt we could ignore the institutional problems of having an executive branch endowed with these tools because of the personal qualities of the man inhabiting the Oval Office. We can no longer take that for granted. I believe Obama missed a unique opportunity right after his inauguration to make a concerted push for real, lasting reform. Perhaps, in this small window before Trump’s inauguration, we have a similar opportunity to push for action to prevent future war crimes.