President-elect Donald Trump promised on multiple occasions during the campaign to bring back torture in order to “fight fire with fire.” As with some of his other campaign promises (draining the swamp of lobbyists, getting rid of Obamacare in its entirety), Trump may pivot away from torture as well. His meeting with General James Mattis prior to appointing the retired Marine to Defense Secretary seemed to suggest just that, with much of the press emphasizing that Trump was “surprised” and “impressed” to learn that a tough guy like “Mad Dog Mattis” preferred beers and cigarettes over torture for interrogations.
What received less emphasis was Trump’s caveat that “[i]f it’s so important to the American people, I would go for it. I would be guided by that.” It is often unclear whether we should take Trump at his word. If Trump does what he says, however, we are entering a new chapter in the history of torture – or perhaps opening one that has been closed for a long, long time.
Justifications for interrogational torture have been of two kinds since 9/11; explicit and implicit. The explicit justification, from speeches by former President Bush to the steady stream of apologias for the CIA’s torture program from top Bush administration officials down to (some) CIA officers, has been that torture (not called that) was effective in eliciting life-saving information on plots against the homeland. The implicit justification has been revenge, as illustrated in, for example, political cartoons. Locutions such as former Vice President Dick Cheney’s defense of torture in order to go “after the bastards that killed 3,000 Americans on 9/11” indicate that effectiveness and revenge are not mutually exclusive. Trump made this explicit when he said “[b]elieve me, it works. And you know what? If it doesn’t work, they deserve it anyway, for what they’re doing.”
As seductive as an appeal to simple-minded symmetry and jus talionis may be, “fighting fire with fire” often makes for bad practice outside of wilderness fire-fighting. There is a reason ordinary fire engines are stocked with water and not flame-throwers. Torturous executions may be optimal for getting media attention, but that does not mean torture is optimal for getting good information. And whatever sweet pleasure is taken from revenge comes at great cost: failing to get life saving information from methods that work, alienating allies and reducing the cooperation we need from them to catch bad guys, and compromising long standing and deeply held American values.
If Trump does what he says, however, we are entering a new chapter in the history of torture – or perhaps opening one that has been closed for a long, long time.
While there is no evidence Trump has recognized these problems, he has nevertheless introduced a new, plebiscitary, justification for torture by saying he would be “guided” by the American people “if it’s so important” to them. This, in conjunction with other moves such as the involvement of his family, evokes the personalistic populism, patriarchal familialism, and demagoguery of a Latin American “caudillo” or an African “big man” (gated). His penchant for asking the people for their assent to violence, whether at his rallies or now about torture, also invokes the stereotype of a much older model: the Roman emperor before the coliseum, working the crowd for a thumbs up or a thumbs down.
Trump’s crowd is now all Americans and just how he will work them is unclear. Given his preference for Twitter, the modern arena may be much larger, if virtual. Would Trump ask for a thumbs up or thumbs down on the policy as a whole, or, in keeping with his tendency to react to day to day events, on a case-by-case basis? What would Americans do if he really did seek their guidance? A Red Cross survey released in early December is not encouraging, with a near absolute majority (46%) saying “a captured enemy combatant can be tortured to obtain important military information.” Only three in ten said no and nearly one in four replied they didn’t know or preferred not to answer.
Assuming Trump has some respect for the law, even a Twittered thumbs up will be a problem given the 2016 National Defense Authorization Act passed last year. Section 1045 of that spending bill enshrined into law President Obama’s executive order limiting interrogation techniques to those in the Army Field Manual. There are two ways Trump could try to bring back torture given this constraint: work within it by changing the manual or changing the law itself.
Trying the former is likely to meet both legal and political obstacles. The legal obstacle is a provision requiring that the manual be thoroughly reviewed and updated every three years (the first review and update is due in November 2018) “to ensure that Army Field Manual 2–22.3 complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.” It is difficult to see how waterboarding “or worse” could be seen as not violating the prohibition on force. The political opposition will come not only from Democrats and prominent Republican members of Congress such as Senator John McCain who have promised to fight any attempt by Trump to bring back waterboarding or other torture, but also from the military itself, starting with Defense Secretary Mattis. Of course, this political opposition would also make the second strategy of changing the law itself more difficult.
Trump may nevertheless push for it, especially if there were a terrorist attack in the United States and an attacker were caught alive. In that environment, most of the Congressional opposition which exists is likely to melt away, leaving only principled opponents like McCain, Diane Feinstein, Ron Wyden, and a few others. Within the cabinet and the military, history provides few examples of secretaries and generals who have tendered resignations in protest of Presidential policy. General Mattis may oppose torture, but Trump’s National Security Advisor General Michael Flynn’s position is squishier, and if he goes down far enough, Trump will eventually find someone to sign off. If that happens, Trump can torture by Twitter. After all, there’s an app for that.
Image credit: Pollice Verso (1872) by Jean-Léon Gérôme, Phoenix Art Museum. Public domain via Wikimedia Commons.
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