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.
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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