By David Luban*
Presidential candidate Donald Trump has made headlines with his campaign promise to revive torture as a U.S. government practice. First, with his signature bluster, Trump declared last November that he would approve waterboarding “in a heartbeat.” He added, “And I would approve more than that. . . . And you know what? If it doesn’t work, they deserve it anyway, for what they’re doing.” In February he repeated that he would bring back waterboarding “and a hell of a lot worse.”
Trump’s promises received a frosty reception from U.S. intelligence officials. General Michael Hayden, former CIA head and an unapologetic hawk, said “If some future president is going to decide to waterboard, he’s better bring his own bucket, because he’s going to have to do it himself,” and torture memo author John Yoo and former CIA General Counsel John Rizzo agreed.
Perhaps because of this blowback, Trump reversed course in an unexpected but welcome bow to the rule of international law:
I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters. I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.
Of course, torture is a violation of laws and treaties, so Trump might be thought to have contradicted himself. In a third pronouncement made on Face the Nation, Trump tried to remove the contradiction:
I would like to strengthen the laws so that we can better compete. It’s very tough to beat enemies that don’t have any -- that don't have any restrictions, all right? We have these massive restrictions. . . . Now, I will always abide by the law, but I would like to have the law expanded.
It’s worth looking at how, legally, that might happen. Let’s start by examining the laws President Trump would have to change, and what it would take to change them.
CAT and the Torture Statute
As he noticed, the United States is bound by international treaties not to engage in torture or in so-called “cruel, inhuman, or degrading treatment or punishment” short of torture (usually abbreviated CIDTP). There is, first, the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – CAT, for short – which currently has 158 states parties. The United States signed CAT in 1988 and ratified it six years later. In its article 1, CAT sets out what has now become the standard definition of torture: intentional infliction of severe mental or physical pain or suffering by state officials or agents. It requires states to make torture a crime under domestic law, and to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” (art. 16).
The United States implemented the former requirement with a pair of criminal statutes, 18 U.S.C. §§2340-2340A, which define torture along the lines set out in article 1 of CAT, and make it a heavy federal felony, punishable by 20 years in prison – and, if the victim dies, a potential life sentence or death penalty.
The U.S. statute has some serious flaws, mostly in its peculiar and very narrow definition of mental pain or suffering, which make mental torture nearly impossible to prosecute. (Henry Shue and I offer extensive critique in our article Mental Torture: A Critique of Erasures in U.S. Law) Furthermore, the Senate added an understanding when it ratified CAT specifying that CIDTP means only “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments.” That allowed Bush administration lawyers to play lawyer games to evade article 16 – first, by arguing that because these amendments don’t apply extraterritorially, acts committed abroad don’t count as CIDTP. Second, they argued that under Supreme Court interpretations of the “shocks the conscience” test for Fifth Amendment violations, cruelty inflicted for vital national security aims does not shock the conscience. Under these arguments, nothing short of torture that U.S. interrogators do abroad, or on behalf of vital national security interests, can count as cruel, inhuman, or degrading, no matter how cruel, inhuman, or degrading it is.
These arguments, which defy common sense by declaring that cruelty is not cruelty, were developed in the various torture memos written by the Office of Legal Counsel and other DOJ officials. Congress amended the law to close the extraterritoriality loophole in 2006 (the Detainee Treatment Act, in 42 U.S.C. §2000dd(b)). And the torture memos abruptly exited U.S. law when, on his third day in office, President Obama issued Executive Order 13491, which – along with banning torture and CIDTP – declared that U.S. personnel “may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.” (Presumably, a President Trump would revoke this executive order as soon as he took office.)
Despite their limitations, CAT and the torture statutes that implemented it were a gigantic step forward, and they would be a legal roadblock to President Trump’s pro-torture agenda. What could he do about them?
Well, if he had a compliant House of Representatives and a filibuster-proof majority of the Senate, he could get Congress to repeal the torture statutes, or (less drastically) amend them. For example, Congress could add a clause declaring that waterboarding is not torture. For that matter, Congress could add a clause declaring that methods a hell of a lot worse than waterboarding are not torture. Congress could declare that nothing U.S. officials do to interrogate terrorism suspects is torture. It could enact legislation saying that none of these tactics are cruel, inhuman, or degrading either.
To do any of these things would rather obviously put the United States in breach of CAT, but under familiar principles of U.S. foreign relations law dating back to Foster v. Neilson, 27 U.S. 253 (1829), a treaty is “equivalent to an act of the legislature” that can be superseded by a later in time, inconsistent, act of the legislature. In other words, nothing prevents Congress from putting us in breach of international law. Unfortunately, the only international law “remedy” for the breach is that other parties to CAT can suspend the treaty as a whole, or in relation to the breaching party (see Article 60 of the Vienna Convention on the Law of Treaties) – which would destroy the law against torture rather than enforcing it.
Of course, President Trump could put his famous (self-proclaimed) negotiating skills to work by getting CAT amended; but I’m supposing that he will find few takers among the state parties. Not many states that joined CAT will be eager to tell the world that they’ve now decided torture is back in style. (I’m not denying that some state leaders might privately think Trumpian thoughts about torture, nor that some state parties to CAT practice torture in breach of their obligations.)
Alternatively, Trump could follow the Bush Administration’s lead and reinstate the torture memos, which declared that none of the CIA’s techniques are torture – accomplishing his pro-torture goal via interpretation rather than legislation. He would, of course, need to add brand-new torture memos to authorize whatever shiny new techniques “a hell of a lot worse” than waterboarding he has in mind. (Needles under the fingernails? Electric shocks to the genitals? Whipping the bottoms of victims’ feet?) Maybe he could find some compliant lawyers willing to swallow the humiliation of reinstating memos that their own government repudiated – some during the Bush administration. But, from the time these memos became public in 2009, they have become Exhibit A in how not to practice law, and I would hope that Justice Department lawyers would respond with a hearty “nfw!” if asked to resurrect them. They will certainly be aware that DOJ’s own Office of Professional Responsibility reprimanded John Yoo and Jay Bybee for bad judgment in writing the first torture memo, and came very close to referring them to bar counsel for professional discipline. (Among its many legal defects, their opinion failed even to mention the one circuit court opinion on “water torture” – the term “waterboarding” came later – a Reagan-era opinion that had no difficulty in calling the technique “torture,” nor U.S. war crimes cases that convicted defendants for engaging in water torture.) It might be that Trump would have to bring his own law books to the torture chamber along with his own bucket.
The Detainee Treatment Act and McCain-Feinstein
What about the Detainee Treatment Act and the more recent McCain-Feinstein Amendment to last year’s defense appropriations bill, which wrote much of President Obama’s executive order into statute? Here again, a President Trump hell-bent on torture and cruelty could go to Congress for a repeal, or he could try the quieter and subtler route of interpreting the laws into meaninglessness.
How would he do the latter? The executive order and McCain-Feinstein limited interrogations to techniques in the Army’s Field Manual on interrogation, which forbids “enhanced” interrogation. Currently, that Field Manual is under revision, and the president could try to build new permissions for cruelty and torture into the revised manual. (There is already some concern about what G2X, the Army’s espionage office, has in mind for the revision process. But as long as Executive Order 13491 remains in force, whatever those revisions are must limit themselves to humane treatment, defined as treatment conforming to Common Article 3 of the Geneva Conventions, discussed below.) He might try this – if he doesn’t mind staining the honor of the U.S. Army. As long ago as 2003, the senior JAGs of all the armed services protested the Bush administration’s torture policy, reminding the administration that the military prefers “the moral high road” and warning that the administration put U.S. service members at risk of international prosecutions. My Georgetown colleague Rosa Brooks may well be right that our military has such a strong commitment to civilian control that they would likely not disobey the president’s orders, but only a president who cares nothing for U.S. military honor would put them in that position.
The Geneva Conventions
Mentioning the military takes us to the next treaty Trump would need to overcome: the Geneva Conventions. Common Article 3 of the 1949 GCs (so-called because it appears in all four Conventions) prohibits “cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating or degrading treatment.” The GCs are even more entrenched than CAT because they are universal treaties: every country in the world belongs to them.
In one respect, Trump’s task would be easier. Congress implemented the GCs’ prohibitions on torture and cruelty in 1996 in the war crimes statute, 18 U.S.C. §2441. It defines torture along the same lines as the torture statute. But in 2006, after the Supreme Court declared in Hamdan v. Rumsfeld that Common Article 3 governs U.S. treatment of Taliban and Al Qaeda captives, the Republican Congress rammed through a convoluted and retroactive rewrite of the statute to ensure that U.S. interrogation techniques would not count as cruel and inhuman treatment. Here, at any rate, the interpretive damage was done a decade ago by Congress rather than the Justice Department’s lawyers.
But, just as in the case of CAT, the U.S. statute differs so significantly from the language of Common Article 3, and from the jurisprudence of other states, that Trumpian techniques of cruelty that conform to the U.S. statute would certainly place us in breach of the treaty. Although Congress asserted that the Guantánamo military commissions conform to Common Article 3 (section 948b(g), a clause subsequently removed from the Act), it made no similar assertion about its amendments to the war crimes statute – and for good reason.
Does that mean that U.S. personnel would be committing war crimes under international law by inflicting cruel treatment or torture on captives? Not under the GCs because while Common Article 3 forbids torture, cruelty, and outrages against personal dignity, it does not criminalize them. This is not because they are different from the kind of conduct the GCs consider to be “grave breaches,” that is, crimes, but because Common Article 3 applies only in non-international armed conflicts, and the GCs establish a criminal law regime only in international armed conflicts.
To be sure, even in non-international armed conflicts such tactics are war crimes under the Rome Statute of the ICC (art. 8(2)(c)(i) and (ii)). But, as a non-member of the ICC, the United States falls under ICC jurisdiction only if its armed forces commit war crimes within the territory of an ICC member state. (That does, however, include Afghanistan, and ICC Prosecutor Fatou Bensouda has announced that she is scrutinizing possible U.S. crimes in Afghanistan.) So, as a technical matter, cruelty by U.S. forces would in most circumstances not be war crimes. As a real-life matter, they certainly are: they are the same acts that – if committed in an international armed conflict – would be clear-cut war crimes.
So far, I’ve written mostly about the dreary legalities, not about the politics or diplomacy of a Trumpian torture renaissance. The politics behind repealing or amending the laws would, I think, be nearly impossible. All it would take is 41 Senators to block such a measure, and there are Republicans as well as Democrats who are adamantly anti-torture. And I would expect a political uproar, both inside and outside government, if Trump revoked Executive Order 13491, reinstated the torture memos, commissioned new ones, pressured the Army to write torture into its interrogation manual, and ordered the CIA to get back into a business that burned it badly last time around. I would hope so. Unhappily, periodic Pew polls find that pro-torture sentiment has grown steadily over the years, from 43% in 2004 to 58% today. There are many reasons: the partisan nature of the torture debate (caused almost entirely by the Republican Party closing ranks behind Bush-era torture); terrorism panic nearly unprecedented in the years since 9/11; a debased public discourse focusing entirely on whether torture “works” rather than on morality or law; a shallow equation of torture with “toughness”; the lack of accountability for torturers (which I blogged about here and here, and analyzed in chapter 10 of Torture, Power, and Law); and simply getting used to the idea after so many years. But the shift in public opinion polls doesn’t mean that so many dramatic changes in the law are politically feasible.
A revival of torture would, in addition, be a foreign policy disaster for the United States. We would be the only state in the world to pull out of Common Article 3, and the first state to pull out of CAT. All our claims to leadership in human rights would evaporate; all our efforts to criticize the human rights records of other states would be universally perceived as hypocritical howlers. As I told reporter Ben Armbruster, the torture renaissance would be a triumph for our international adversaries, a humiliation in the eyes of our allies, and a boon to every torturer on the planet. Unless Congress, the State Department, the Justice Department, and the national security agencies fall into the hands of lunatics, they will all run, not walk, away from any of this.
And yet, Donald Trump has done one thing right. What is most remarkable in the torture debate is how little the law seems to matter to most of the pundits. The fact is, torture is a serious federal felony, and a violation of international law – a fact that is almost never mentioned in the public debate. By bringing up laws and treaties, Trump has reminded us of something far too many of us ignore.
*The author is University Professor at Georgetown University Law Center. His 2014 book Torture, Power, and Law is published by Cambridge University Press, and won the 2015 American Publishers’ Association PROSE Award for scholarly excellence in philosophy.