Bringing Back Torture Wouldn’t Just Be A Mistake—It Would Be Illegal

Rachel Barr

Vol. 38 Associate Editor

After just a few weeks in office Donald Trump has already threatened to violate international law. I’m not talking about his executive orders banning refugees from entering the United States,[1] or his re-implementation of the global gag rule;[2] I’m talking about his desire to revive enhanced interrogation techniques, also known as torture. On January 25, it was reported that a draft executive order, entitled “Detention and Interrogation of Enemy Combatants,” if signed, would begin a review process that could eventually lead to the re-opening of C.I.A. black site prisons, and the reinstatement of torture.[3] The order would specifically have revoked the Obama-era order that closed the black site prisons and limited interrogation techniques to those in the Army Field Manual, which “prohibits waterboarding, prolonged sleep deprivation and other enhanced interrogation techniques.”[4] As of February 4, it appears as though the administration has walked back the terms of the order and, in the latest draft, no longer plans to revoke Obama’s executive order or pursue an evaluation of whether C.I.A. black site prisons and torture should be used.[5] But, we’re not out of the woods. The executive order is still in draft form, and could continue to change and evolve before it is eventually signed.[6] The C.I.A. also recently named Gina Haspel, who ran a CIA prison in Thailand where suspected terrorists were tortured, as their deputy director.[7] There is no guarantee that the Trump administration will not reintroduce enhanced interrogation techniques. Doing so would not only be a mistake and a violation of domestic statutes but also a violation of international law.[8] While the United States has often shied away from becoming a party to international human rights treaties, the U.S. signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1988 and ratified the treaty in 1994.[9] The Convention makes clear that any intentional infliction of severe physical or mental pain or suffering committed by a state actor for the purpose of obtaining information, inflicting punishment, or coercion is torture.[10] The treaty explicitly states that there is no exception for torture during times of war, instability, or public emergency.[11] The International Covenant on Civil and Political Rights (ICCPR), of which the United States is also a party, also prohibits torture.[12] Any use of torture, even under the guise of gaining information that would help intelligence agencies root out terrorism, would be a violation of the country’s international obligations under these treaties. In addition to reinstating torture being a violation of the Convention against Torture and the ICCPR, it would also be a violation of customary international law. Customary international law is defined by two elements: state practice (“the widespread repetition by States of similar international acts overtime”) and opinio juris (“the requirement that acts must occur our of a sense of obligation”).[13] In order to become customary international law, the principle must be voluntarily followed by a significant number of countries, and not rejected by many States.[14]  The prohibition of torture has been recognized as a jus cogens under customary international law,[15] and as a result all states are generally bound to uphold it “irrespective of their individual consent”[16] unless the state has consistently and openly objected to the principle during its development.[17] Under customary international law the right not to be tortured is non-derogable, which means that the right may not be limited even in the interest of national security.[18] The resurgence of the use of torture by the United States, whether at C.I.A. black site prisons or at other venues, would therefore violate our obligations under customary international law. Not only is torture against both international and domestic law,[19] it is also bad policy. Trump was quoted saying that torture works and even if it doesn’t “they deserve it anyway.”[20] President Trump could not be more wrong. Not only is torture morally unacceptable, scientists have confirmed that “the extreme stress of torture impairs memory and creates false memories, and can induce psychosis,”[21] suggesting that any information gathered may be unreliable. Even Senate reviews have shown that torture is less effective than the C.I.A. has made it out to be, and that it has made the collection of accurate information even more difficult.[22] As one journalist write, “[o]nce torture is admitted into an interrogation room, the proven successful techniques relying on rapport building are out the window and all you have is pain and more pain.” Additionally, the use of torture techniques drums up anti-American sentiment and is used by terrorist networks in their recruiting efforts.[23] Bringing back torture will not make America great again. Reviving torture will not only violate domestic and international law, but will make our country as as morally reprehensible as our enemies.

[1] Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), https://www.nytimes.com/2017/01/27/us/politics/trump-syrian-refugees.html. [2] L.V. Anderson, Trump Reinstates the Anti-Abortion “Global Gag Rule” That Has Been a Public Health Disaster, Slate (Jan. 23, 2017, 1:55 PM), http://www.slate.com/blogs/xx_factor/2017/01/23/trump_reinstates_the_anti_abortion_global_gag_rule_that_has_been_a_public.html. [3] Charlie Savage, Trump Poised to Lift Ban on C.I.A. ‘Black Site’ Prisons, N.Y. Times (Jan. 25, 2017), https://www.nytimes.com/2017/01/25/us/politics/cia-detainee-prisons.html?_r=1. [4] Id.; Rupert Stone, Science Shows that Torture Doesn’t Work and Is Counterproductive, Newsweek (May 8, 2016, 3:32 PM), http://www.newsweek.com/2016/05/20/science-shows-torture-doesnt-work-456854.html. [5] Greg Miller, White House Moves Away from Plan for CIA ‘Black Site’ Prisons, Wash. Post (Feb. 4, 2017), https://www.washingtonpost.com/world/national-security/white-house-moves-away-from-plan-for-cia-black-sites/2017/02/04/83f7bd62-eb22-11e6-bf6f-301b6b443624_story.html?utm_term=.4029dacd0913. [6] Id. [7] Id. [8] Adam Serwer, Can Trump Bring Back Torture?, Atlantic (Jan. 26, 2017), https://www.theatlantic.com/politics/archive/2017/01/trump-torture/514463/. [9] Implementing CAT: Working to Eliminate Torture, U.S. Hum. Rts. Network, http://www.ushrnetwork.org/our-work/project/cat-convention-against-torture (last visited Feb. 5, 2017). [10] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85. [11] Id. art. 2. [12] International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171; FAQ: The Covenant on Civil & Political Rights (ICCPR), ACLU, https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr?redirect=faq-covenant-civil-political-rights-iccpr (last visited Feb. 5, 2017). [13] Customary International Law: Research Guides & Background Information, Int’l Legal Res. Tutorial, https://law.duke.edu/ilrt/cust_law_2.htm (last visited Feb. 5, 2017). [14] Id. [15] The Legal Prohibition Against Torture, Hum. Rts. Watch (Mar. 11, 2003, 3:51 PM), https://www.hrw.org/news/2003/03/11/legal-prohibition-against-torture. [16] William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. Online 169 (2010), http://yalelawjournal.org/forum/withdrawing-from-customary-international-law-some-lessons-from-history. [17] Customary International Law, Int’l Jud. Monitor, http://www.judicialmonitor.org/archive_1206/generalprinciples.html (last visited Feb. 5, 2017). [18] The Legal Prohibition Against Torture, supra note 15. [19] Id. [20] Savage, supra note 3. [21] John Bohannon, Scientists to Trump: Torture Doesn’t Work, Science (Jan. 27, 2017, 3:45 PM), http://www.sciencemag.org/news/2017/01/scientists-trump-torture-doesn-t-work. [22] Serwer, supra note 8. [23] John W. Schiemann, No, Donald Trump, Torture Doesn’t Work, Politico (Dec. 2, 2012, 5:24 AM), http://www.politico.com/agenda/story/2016/12/no-donald-trump-torture-doesnt-work-000249.