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Torture is illegal, Mr. Trump

REUTERS/Carlo Allegri
Donald Trump and his supporters need to receive a loud, clear and consistent message: Torture is illegal.

On Nov. 25, 2015, the day before Thanksgiving, President Barack Obama signed into law the National Defense Authorization Act of 2016 (2016 NDAA). Among its provisions is Section 1045, which outlaws torture. The anti-torture provision of the 2016 NDAA stipulates that any person in the custody or effective control of U.S. forces, including the CIA, can only be subjected to interrogation techniques authorized by the U.S. Army Field Manual on Interrogations [PDF]. The manual contains a specific set of interrogation techniques that interrogators can use and prohibits all others. It explicitly proscribes waterboarding, forced nudity, stress positions, sleep deprivation, forced rectal feeding, beatings and other forms of torture.

James Roth

Section 1045 (also known as the McCain-Feinstein Amendment) further requires that the manual be regularly reviewed and updated to include only lawful, humane and effective techniques, that it be made public and that the International Committee of the Red Cross be given access to every detainee.

This is the first time anti-torture provisions have been included in the NDAA.

Strengthens laws and treaties

It significantly strengthens and enhances existing laws and treaties, including the Geneva Conventions, Convention Against Torture, the U.S. Anti-Torture Act (1994) and the Detainee Treatment Act of 2006 by incorporating the explicit prohibitions in the U.S. Army Field Manual on Interrogations into law. The 2016 NDAA enacted into law Executive Order 13491 “Ensuring Lawful Interrogations,” which was signed by President Obama on Jan. 22, 2009.

Section 1045 of the NDAA was introduced in the aftermath of the release of the 549-page Redacted Findings and Conclusions and Executive Summary of the Senate Intelligence Committee Report on Torture [PDF] on Dec. 9, 2014. The executive summary was the culmination of a five-year study and investigation by the Senate Intelligence Committee into a program of secret indefinite detention and the use of brutal interrogation techniques during the period from 2001-2009. The executive summary is part of the 6,700-page full study that provides comprehensive and excruciating details about the history of the Central Intelligence Agency’s (CIA’s) Detention and Interrogation Program from its inception to its termination. The remaining 6,151 pages of the full study have yet to be released. Although there had been previous news stories, articles, books and reports on the torture program this was the first time that investigators had access to CIA records through subpoena power. Many human rights organizations and people continue to call on Congress and the administration to release the remaining 6,151 pages of the full study.

In January 2015 The Constitution Project released a poll on Americans’ attitudes toward torture and found widespread approval across the political spectrum for “strengthen[ing] U.S. laws against torture by making it clearer to the CIA and to the military what behavior is legal, and what is illegal, when interrogating people who have information about terrorists.” A strong bipartisan majority of Americans (67 percent) supported strengthening and clarifying laws against torture [PDF]. 75 percent of Democrats, 69 percent of independents and 56 percent of Republicans said they would approve of such a proposal. 

Issue resolved — until 2016 presidential campaign

The 2016 NDAA was passed in the House by a vote of 370-58 and in the Senate by a vote of 91-3 and signed into law by Obama. With the Senate Intelligence Committee’s detailed and explicit condemnation against torture and the bipartisan newly strengthened U.S. anti-torture laws, one would have assumed that the issue of U.S. torture was resolved.

Then came the 2016 presidential campaign.

The issue surfaced in the Republican primary debates on Feb. 9 when moderators asked if candidates would bring back the explicitly banned technique of waterboarding, which involves strapping someone down on a board and simulating killing them by drowning. Sen. Ted Cruz responded that he would bring back the “enhanced interrogation technique” only in select circumstances saying, “I would use whatever methods we could to keep this country safe.” Sen. Marco Rubio sidestepped the question but said the United States needed to get tougher on interrogating prisoners. Donald Trump was not restrained. “I would bring back waterboarding, and I would bring back a hell of a lot worse than waterboarding,” Trump said to cheers. Jeb Bush, Ben Carson, Rick Perry and John Kasich also indicated support for enhanced interrogation techniques including waterboarding.

This does not sit well with Sen. John McCain, who spent years as a prisoner of war in North Vietnam and suffered torture firsthand, and who co-authored the most recent anti-torture law. On Feb. 9, McCain responded from the Senate floor:

It’s been so disappointing to see some presidential candidates engaged in loose talk on the campaign trail about reviving waterboarding and other inhumane interrogation techniques…It might be easy to dismiss this bluster as cheap campaign rhetoric, but these statements cannot go unanswered because they mislead the American public about the realities of interrogation, how to gather intelligence, what it takes to defend our security, and, at the most fundamental level, what we are fighting for as a nation and what kind of nation we are. 

Harmed U.S. reputation without adding useful information

McCain, chairman of the Senate Armed Services Committee, stated that the U.S. “stained” its national honor by using torture tactics after 9/11 and that the techniques failed to produce useful intelligence and did incalculable harm to the nation’s reputation. He also noted another problem with the campaign proposals to bring back waterboarding and other forms of torture — that they were made illegal by Section 1045 of the NDAA that was passed into law just last year with significant bipartisan majorities.

More than 100 Republican national security leaders and professionals, including former Cabinet officials, vowed to work against Trump’s election in an open letter.

After intense criticism by retired Gen. Michael Hayden, Trump recanted, saying on March 6 that he would not order the military to break U.S. and international laws despite calling for torture of suspected terrorists and the killing of their families. He told The Wall Street Journal he would “use every legal power that I have to stop these terrorist enemies. 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 these laws and will seek their advice on such matters.” 

The next day Trump reversed course once again and stood by his proposals to subject suspected terrorists to torture even if it goes against the Geneva Conventions saying, “We have to beat back the savages.” During a rally and news conference on March 7 Trump said he would seek to “broaden” the laws to allow torture, including but not limited to waterboarding.

On June 28 Trump renewed his support for the use of torture. “What do you think about waterboarding?” he asked. He then gave his own answer: “I like it a lot. I don’t think it’s tough enough.”

Law and morality on one side, Trump on the other

The Geneva Conventions, Convention Against Torture, U.S. Anti-Torture Act and Section 1045 of the National Defense Authorization Act, as well as dozens of U.S. military and intelligence officials, anti-terrorism interrogators, and human rights professionals and organizations stand on one side against torture; Donald Trump stands on the other side.

Which side will win?

Those who support torture include not only presumptive Republican nominee Donald Trump but also former Vice President Dick Cheney; the former lawyers at the Office of Legal Counsel at the Justice Department who wrote the infamous “torture memos,” since rescinded and repudiated; a handful of other members of the Bush administration and the CIA; and some portion of the American public. Some opinion polls have shown that over 50 percent of the American public support torture as long as the U.S. conducts it.

This support for torture may be connected to popular fiction, including television shows such as “24” and movies such as “Zero Dark Thirty,” that have furthered the misconceptions that torture works to find targets like Osama bin Laden and save lives. Experienced anti-terrorism interrogators, including those actually involved in finding bid Laden, uniformly disagree. A handful of academics still quibble over definitions in treaties and prior U.S. laws, further fueling these myths.

Section 1045 closes all the loopholes. Torture is illegal under international and U.S. laws. It is immoral and ineffective. Donald Trump and his supporters need to receive a loud, clear and consistent message: Torture is illegal.

James Roth, who lives in Minneapolis, is a retired lawyer and one of the co-founders of Advocates for Human Rights and the Center for Victims of Torture. He lobbies members of Congress on foreign policy and human-rights issues with the Minnesota Peace Project. The Senate Committee on Intelligence and Senate Armed Service Committee consulted with Roth on the preparation of Section 1045 of the NDAA.

A longer version of this commentary first appeared in The Clarion, the IHRC Journal of Human Rights.


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Comments (12)

  1. Submitted by joe smith on 07/05/2016 - 09:17 am.

    Killing civilians with drones is illegal also…

    There have been many innocent civilians who were killed in drone attacks on high up terrorist targets by the Obama administration. Is that ok? Is that legal? I don’t hear much about that. I feel much worse about innocent people getting killed than water boarding a KNOWN terrorist. Amazing what we overlook through our political leanings.

    • Submitted by RB Holbrook on 07/05/2016 - 10:27 am.

      What We Overlook

      Yes, deliberately killing civilians is illegal (are you saying the killings are deliberate? Are they more than are killed on the ground in Iraq or Afghanistan? Please clarify). We hear about it plenty, but the fact that the public does not share your outrage over the Obama Administration in general does not mean that it is overlooked.

      The right-wing fantasies of waterboarding terrorists because–well, I’m not sure why, exactly–are willing to overlook much more. They are willing to overlook the illegality of waterboarding under US and international law. They are willing to overlook the fact that the US has prosecuted its own soldiers, as well as those of vanquished enemies, for indulging in the practice. It also overlooks the fact that torturers are regarded as “enemies of all humanity,” and makes the US lose any claim to moral superiority when it tries to use it.

      “I feel much worse about innocent people getting killed than water boarding a KNOWN terrorist.” I feel even worse about the US turning itself into a rogue nation because it sounds cool.

    • Submitted by Neal Rovick on 07/05/2016 - 10:40 am.

      ….. water boarding a KNOWN terrorist….

      First problem–known by whom ?

      Second problem–torture induces people to say whatever the interrogator wants to hear. Hardly reliable information, especially when the interrogator has no idea of what is possibly true and what is not.

      Third problem–Guantanamo is filled with tortured “bad guys” that can never go to trial or receive the ultimate justice that they deserve due to the illegality that they were subjected to.

      Fourth problem–stop remembering the torture porn of shows like “24” as representative of reality.

    • Submitted by Jim Roth on 07/05/2016 - 11:07 am.

      @Joe Smith

      The illegality of torture is not a question of political leanings. This legislation was sponsored by John McCain and was passed by large bipartisan majorities. The article refers to over 100 senior and security officials who have publicly criticized and stated they cannot support Mr. Trump because of his position on torture. The prohibition on torture is well established. It is not a partisan issue.

      The article does not address drones. That is a complex topic also deserving of careful, reasoned analysis. I try to leave politics out of my articles to the extent possible. Mr. Trump has politicized torture which is why this article is addressed at him.

  2. Submitted by Bill Schletzer on 07/05/2016 - 07:21 pm.

    Say it ain’t so, Joe

    It is pathetic that since Bush and the Republicans came along we have to discuss the legality of torture. I doubt ever in American history the legality of torture was debated. That is because there was something stronger and more important back when America was “great”. Back then it was taken for granted by Americans as a people that torture was morally wrong. It went against our consciences whether we were Christian, Jew or atheists or any of the other religions that we hear more about now than when I was a kid in the 50s. We never had to debate the legality of torture because torture was too abhorent to consider.

    Hiding behind the fact of drone deaths is a coward’s way of hiding from the evil that you agree to when you accept torture as part of the American way of life. I was taught thet we won not just because we were more powerful but because we were on the side of right, on the side of God. I know that is a lot of hooey, that America has supported despots for a hundred years, that labor rights people in the 30s were attacked and beaten by police; that Jim Crow suppressed a large part of our population, that we locked up Japanese Americans in internment camps during WWII and many other terrible things. But to me naively it seemed that once the light of truth was shined on these National sins positive change would happen.

    I cringe every time I hear a Trump crowd cheer when he talks about how much he loves torture.

    • Submitted by joe smith on 07/06/2016 - 07:44 am.


      If water boarding can save one American life, I’m all for it. We are at war with radical Islam, even if some deny it, the whole civilized world is at war with them. I don’t know if you are unaware of ISIS beheading Christians, throwing gays off roof tops, having 12/13 year old girls as sex slaves, killing any and all who do not believe in their caliphate. So if water boarding can save one American life, I am all for it. You can feel how you feel, good for you, I don’t agree…. There are many laws we have passed that I don’t believe in, this being one.

      • Submitted by RB Holbrook on 07/06/2016 - 09:11 am.

        “If water boarding can save one American life . . .”

        Except–and I can’t stress this enough–it doesn’t. It is ineffective as a means of getting information. This has been proven, time and again, since the days of the Inquisition.

        In fact, if anything, it endangers American lives. Waterboarding and other forms of torture lower the bar for what is considered acceptable conduct. Captors of Americans will have no reason not to treat them with any degree of brutality,, on the theory that the Americans would do the same to them. Tit-for-tat is a dangerous slope to go down. If we start formulating policy based on the “look what they would do/did to us!” mentality so beloved of internet comment sections, there is no stopping.

        “I don’t know if you are unaware of ISIS beheading Christians, throwing gays off roof tops, having 12/13 year old girls as sex slaves, killing any and all who do not believe in their caliphate.” And just how would waterboarding stop that? How would that even slow it down?

        Ineffective, immoral, lawless–it’s no wonder waterboarding would appeal to the pro-Trump faction of the electorate. George Washington (executing those who mistreat prisoners would be justified) would be appalled.

  3. Submitted by Ilya Gutman on 07/05/2016 - 09:51 pm.


    A person arrested in Brussels after terrorist act there admitted to planning more attacks and there is high probability (actually, almost for sure) he knew the perpetrators of that carnage. So all he had to do was to name them and point out where they live. Of course, liberals forever were saying that ticking bomb scenario is not real but this time it was exactly that. Sure, these people are not afraid to die so threatening them with execution would not work. But waterboarding or sleep deprivation could have helped; in fact even a threat of that could have. Being ready to die is not the same as being ready to suffer. It is interesting how people want to keep high moral ground and win against those who don’t care about any moral which is mutually exclusive. Those who died and their loved ones would not care about morals if they could live so those who dismiss waterboarding are doing it at someone else’s expense.

    • Submitted by Brian Stricherz on 07/06/2016 - 07:28 am.

      CIA torture was shown to be….

      …. ineffective. Nothing gained through torture, but much lost.

    • Submitted by RB Holbrook on 07/06/2016 - 09:13 am.

      Please Clarify

      “A person arrested in Brussels after terrorist act there admitted to planning more attacks and there is high probability (actually, almost for sure) he knew the perpetrators of that carnage. So all he had to do was to name them and point out where they live.” So he was tortured into naming them? Or did he make this admission after non-inhumane interrogation by law enforcement? Please clarify.

      “But waterboarding or sleep deprivation could have helped; in fact even a threat of that could have.” Well, no, it doesn’t.

      Didn’t the US learn about sleep deprivation techniques from Stalin? What a mentor!

  4. Submitted by Jim Boulay on 07/06/2016 - 06:31 am.

    Trump Praises Saddam!

    Thanks to Mr Roth for reminding us about Trump’s Torture Tactics! Today Trump even praised Saddam for how he dealt with terrorist! Now there’s a role model we should emulate! Sad that this is what the republicans are going to celebrate is less than 2 weeks. How do people take Trump seriously? How could they vote for this train wreck? Is there no baseline for what we will do as the greatest country in the world? Or do we just slide down into the morass of pain, death and suffering of the terrorists themselves?

    Your work with the center for victims of torture must give you insight into how people justify torture and murder. I would be interested in an article about the similarities of what Trump is saying with the views of leaders like Milosivec in The break up of Yugoslavia. I think this is a better comparison than Trump/Hitler. What do you think?

  5. Submitted by Gerald Abrahamson on 07/06/2016 - 08:25 am.

    Do they believe in the effectiveness of torture?

    If torture was actually effective at getting the truth, then the US courts would require it. How else would they know if what was said was the truth? Suddenly, everything changes. Job interviews now include it was well (well, they DO want the truth–right?). Same for the police, etc. According to the right, it is “just another tool” to be used. So, use it against the right. That means politicians are also going to experience it–because how *else* will the public learn the truth about them?

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