Donald Trump has threatened to make good on his campaign pledge to bring back waterboarding and forms of torture "a hell of a lot worse." That would violate international and US law, of course, but could he do it anyway?
There was a sense that the US was coming to grips with its crimes in December 2014, when the Senate completed its report on CIA torture under President George W. Bush in the years following the attacks of September 11, 2001. Months later, on June 16, 2015, when more than 20 Senate Republicans joined their Democratic colleagues in a 78-21 vote to ban torture once and for all, there was a sense that the country was even moving forward. There would be no more "rectal feeding" of prisoners in the CIA's secret interrogation centers, no more threats to kill inmates' children or parents, no more people killed by hypothermia after spending hours forced into stress positions on frigid concrete. But, 230 miles (385 kilometers) from the US Capitol on that very same June afternoon in 2015, a reality television host was kicking off a scorched-earth presidential campaign at the New York City tower he had named for himself. And in 2017 the United States finds itself debating the limits of official cruelty all over again - though not necessarily the long-settled legality.
"Torture under international law is categorically prohibited under all circumstances," said Alberto Mora, the Navy's general counsel during the Bush administration and a leading Defense Department opponent of the practices euphemistically referred to as "enhanced interrogation." "This is what's called a nonderogable law, meaning that there is no set of circumstances or extenuating circumstance which would justify the application of torture."
Americans became most aware of those practices in 2004, whenthe New Yorker magazine published photos of smiling soldiers posing with abused, humiliated and naked prisoners at Iraq's Abu Ghraib detention facility. "That likely made it clear to the majority what was going on," the German historian Alexander Bahar told DW. "Many who had supported the war on terror had the realization: That goes too far."
In 2005, the military was prohibited from torturing prisoners, and in a 2009 executive order President Barack Obama banned intelligence agencies from indulging in such practices. At any rate, they were already banned by the Geneva Conventions and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - both of which the US had long ago agreed to.
'Within the bounds'
In an interview with ABC News at the White House on Wednesday, new US President Donald Trump attempted to justify the use of torture by citing the atrocities committed by extremist groups. "When ISIS is doing things that nobody has ever heard of since medieval times, would I feel strongly about waterboarding?" Trump said, using a common acronym for the "Islamic State" terror group. "As far as I'm concerned, we have to fight fire with fire." Trump added, however, that he would seek the advice of Pentagon chief James Mattis and CIA director Mike Pompeo on the matter. "I'm going to do what they say," he said. "And if they don't want to do, that's fine. If they do want to do, then I will work toward that end. I want to do everything within the bounds of what you're allowed to do legally."
Though that allowance is, in fact, nothing - no sexual, psychological or physical abuse at all - the US's experience under the Bush administration shows that leaders will try to push the legal boundaries as much as possible. The reason for that is twofold: Fiddling with the law doesn't just redefine which practices torturers might temporarily get away with, but it can also provide important cover down the road.
"In the Bush administration, torture was also prohibited, and the Bush administration constantly ignored or sought to redefine the law in order to permit the use of the prohibited," said Mora, now a fellow at Harvard's Carr Center for Human Rights Policy. "But they did so knowing torture was prohibited and knowing that they were violating the law when they did so. They were trying to make a public case, and also they were trying to create a shield against future accountability for having committed war crimes, so what the legal record of the Bush administration shows is that they sought to ensure that those responsible for proposing, authorizing and implementing the program would never be held accountable for the commission of torture." And, he noted, they were "completely successful" at that.
What comes next
Broad opposition has arisen since President Trump restated his desire to expand torture to include techniques "a hell of a lot worse" than the prohibited waterboarding, or simulated drowning. Members of his circle of intimates took their concerns to The New York Times, which obtained a draft memo in which the administration asserted that "the United States has refrained from exercising certain authorities critical to its defense." On Thursday, Speaker of the House Paul Ryan said the US would not engage in torture, and Senator John McCain, a fellow Republican and a prisoner of war who was tortured in Vietnam, has come out even more strongly on Twitter.
Trump, however, has shown himself to be a president with little interest in precedent. And, though US officials have appeared willing to apologize for past abuses, little has been done to hold them accountable, which could also pave the way for a new administration to operate on the assumption of impunity.
"Under the law, anybody responsible for the authorization or execution, including the application, of torture should bear criminal responsibility for doing so," said Mora. "In the United States at present - this has been true for a number of years - while it's legally unthinkable that there would not be accountability, by the same token it is politically unthinkable that there would be accountability. The reason being that the American people and certainly the US Congress have demonstrated for perhaps a decade now complete hostility towards the notion of accountability. Even President Obama during his two terms in office indicated that he was not prepared to look backward toward accountability and sought to look forward and focus on the prohibition of future instances of torture."
Without accountability measures in place, and with little official will to enforce them anyway, Obama's successor appears, too, to be looking forward.