President Donald Trump’s advocacy of waterboarding and the promotion of a CIA official who once led brutal interrogations have raised concerns that the United States could yet resume torturing suspects in its fight against Islamist extremists.
Last week the leaked draft of a White House executive order detailed a desire to reopen CIA “black sites” used in so-called enhanced interrogations in the early 2000s and to ease tough restrictions on interrogation techniques set by former president Barack Obama. On Thursday, the Central Intelligence Agency announced that Gina Haspel would become the agency’s deputy director, answering to new director Mike Pompeo.
Haspel, a veteran undercover agent, presided over the interrogations of Al Qaeda detainees Abu Zubaydah and Abd al-Rahim al-Nashiri in a secret CIA facility in Thailand after the 9/11 attacks. Those interrogations involved repeated waterboarding and other now-banned techniques. On Friday, five top Democratic senators sent a letter to Pompeo and Defense Secretary James Mattis expressing alarm that the government could change policies and laws to resume the practice of torture, especially in the offshore black sites.
The draft executive order and Trump’s own comments in support of torture “have created alarm that this administration may be preparing a return to policies and practices that are ineffective, contrary to our national values, and damaging to our national security,” the senators said. “Torture is immoral and deeply contrary to the principles of this nation. Beyond that, it is widely recognized as ineffective and even counterproductive, as it produces unreliable information.”
But analysts and intelligence community officials say that, even if the Trump administration wanted to use torture, it would run into both a dense thicket of laws against the practice and extreme reluctance within the intelligence community to resume practices used on detainees in the four years after the 2001 terror attacks.
During his presidential campaign and since his election Trump repeatedly has said he thinks waterboarding and other techniques widely considered torture are effective. “Absolutely, I feel it works,” he said again last week in an interview.
Moreover, he and key advisers have said they want to aggressively attack Islamic extremism, which is the focus of the draft order.
The draft would reverse key Obama orders from 2009 that required that detainees be handled in accordance with international laws including the Geneva Conventions and the Convention Against Torture, as well as with the U.S. Army Field Manual, which sets clear limits on what can be done in interrogations. The draft calls for rewriting the Army Field Manual and loosening other laws restricting interrogation techniques.
Such changes would be made “for the safe, lawful and effective interrogation of enemy combatants captured in the fight against radical Islamism,” it says.
The fate of the draft remains unclear, and Trump acknowledged that his top security team could block the reinstatement of torture techniques. “I will rely on Pompeo and Mattis,” the president told ABC News. “And if they don’t want to do [it], that’s fine. And if they do want to do [it], I will work toward that end.”
Mattis, who would be in charge of any rewriting of the field manual, has openly opposed enhanced interrogations. He has been clear “that he will abide by, and is committed to, upholding international law, law of armed conflict, Geneva Conventions and U.S. law,” Pentagon spokesman Captain Jeff Davis said last week.
While still in Congress, Pompeo was critical of constraints on U.S. spies. But he appeared less categorical during his confirmation hearings early last month to be CIA head. He testified that he would adhere to the law, but avoided answering how effective he thought torture could be and what he would do if the law was changed.
“I can’t imagine that I would be asked” by Trump to resume enhanced interrogations in violation of the law, he said. But he also said he would investigate whether the restrictions on interrogation techniques in the Army Field Manual impede efforts to collect intelligence in defense of U.S. security.
Critics took that as a readiness to explore changing the rules. Yet Pompeo also stressed that any changes had to respect all laws and treaties, and be implemented with full oversight. Taken together, that would seem to significantly lessen any chance of a return to the early post-9/11 days.
The CIA declined to comment. But a U.S. intelligence official said that people “are seeing openings that aren’t there” in Pompeo’s testimony. “There is no real desire to go down that road again by the CIA,” the official said.
Even if the Obama orders were reversed, getting Congress to rewrite laws against torture, including controls included in a military funding bill just last December, would be tough.
Jack Goldsmith, a Harvard University law professor, said he had strong doubts that the Trump administration could overcome all the legal barriers and attitude changes since the 2000s. “I remain convinced that it ain’t gonna happen,” he wrote on the Lawfare website, which focuses on national security law. “I am also confident that if President Trump ordered waterboarding, neither the CIA director nor the secretary of defense would carry out the order.”