The New US Anti-Torture Law: A Genuine Step Forward

Just over two months ago, on the day before Thanksgiving, President Obama signed into law an important provision concerning torture that has garnered surprisingly little attention. Maybe it was the buzz of the coming holidays, or perhaps the fact that it was buried in a 584-page bill relating to more mundane fiscal concerns, but limited explanation and analysis has been put forward on this noteworthy act. In fact, the relatively sparse commentary on the new law might even explain the confusion by the media and presidential candidates alike that led to the continued — and mistaken — recent discussion of whether a future president would authorize waterboarding or “a hell of a lot worse.”

The new provision not only codified the executive order signed by Obama on his second day in office to ensure lawful interrogations by all federal agencies, but it also moved forward scientific study on effective interrogation techniques and transferring this research into government practice. While there is frequent resistance to mixing the concepts of legality and efficacy on the subject of torture, the administration should be praised for moving this fundamental safeguard forward in the wake of acknowledged and officially documented torture, and for doing so in this integrated fashion.

While those of us who have been vocal critics of torture and other questionable counterterrorism tactics (e.g., drones) should continue to push for protections against similar future abuses, it is important to spotlight progress and not just call out transgressions.

Legality

Section 1045 of the 2016 National Defense Authorization Act (NDAA) signed by the President in November dealt with federal interrogation techniques. This provision was a much needed advancement in banning the use of torture during interrogations. It recasts the use of ill-treatment as a political football and removed the possibility that the next president would simply overrule Obama’s January 2009 executive order.

The last presidential election cycle involved this precise gamesmanship, which was again on display this week. During a debate in New Hampshire last weekend, Republican front-runner Donald Trump reiterated his promise to “approve” waterboarding (which lines up with his comments from just before the NDAA was signed). While Obama’s ban remained only an executive order, such political grandstanding was quite foreseeable.

But this has now changed. The new law restricts all interrogation to techniques found in Army Field Manual 2-22.3 (AFM). Unfortunately, many media members and presidential candidates have not caught up to this change in the law. (Of course, some commentators were ahead of the curve and noted its importance back when it was passed by the Senate last summer.)

The surreal public discussion of whether candidates for president would once again allow torture concerns a decision that is no longer left to the executive; a revision of this official constraint on interrogation tactics would need to be passed through Congress. To insist otherwise is to announce no interest in the rules of our constitutional democracy, and journalists should now be reframing their questioning since authorizing waterboarding would break the law, pure and simple.

Section 1045 is a genuine legal step forward in excluding the use of ill-treatment by any agent of the government, including the CIA and private contractors. Many human rights organizations support using the AFM as the single standard for interrogation, not least because it “has clearly prohibited torture since the first version was introduced in 1956.” While torture, cruel, inhuman, and degrading treatment were all illegal when the Bush administration used so-called “enhanced interrogation techniques,” the manual explicitly and specifically prohibits the abusive techniques of waterboarding, beatings, sexual humiliation, and the use of nakedness or military dogs.

Furthermore, Section 1045 requires that the International Committee of the Red Cross — charged with supervising the legal treatment of detainees wherever possible — must be promptly notified and given access to all detainees under the “effective control” of agents of the US government or held within a facility connected to it. As secret detention is known for opening the door to abuse, this should also be touted as an accomplishment.

Section 1045 and the administration’s watershed 2014 declaration that the Convention Against Torture (CAT) is applicable “at all times in all places” are significant markers of progress. Nonetheless, there are still shortcomings in the US’s policy on torture. As concluded by the UN Committee Against Torture, there is a legal requirement to prosecute alleged perpetrators and accomplices and to offer an effective remedy and redress to victims. On these counts, there has been a glaring failure. To boot, the Committee expressed real concern with the “separation” tactics that are authorized under the AFM’s Appendix M (discussed further below).

So even if there has been real progress, there is undoubtedly some distance to be traveled before this legal matter is firmly closed. International law is especially clear and comprehensive on this issue — no torture, by any authority, against any individual, in any circumstances, anywhere in the world. For courts and jurists, this stark status of illegality is not affected by notions of efficacy. However, it did not stop the use of “enhanced interrogation techniques” after 9/11, nor has it brought about any prosecutions for their use. Which leaves one asking: Are there additional avenues to be pursued on this question?

Efficacy

In the shadow of revelations about Abu Ghraib, interrogation abuses at Guantánamo, enforced disappearances to secret detention centers, and extraordinary renditions (all in the name of intelligence gathering), the government-backed publication Educing Information put forward one persistent finding in 2006: There is a stark (and disturbing) dearth of scientific assessment of the interrogation practices used by US agencies.

Of course, this is not a unique observation. In an incredibly comprehensive study, Darius Rejali wrote “There may be secret, thorough reports of torture’s effectiveness, but historians have yet to uncover them for any government. Those who believe in torture’s effectiveness seem to need no proof and prefer to leave no reports” (p. 522).

We also now have the executive summary of the Senate Intelligence Committee’s report on CIA torture. While this undoubtedly helps clarify the situation as to what happened and lends credence to the hypothesis that “torture does not work,” it was an investigation into a haphazard program of ill-treatment that did not systematically track results.

The High-Value Detainee Interrogation Group (HIG) was brought into this void in 2010 as an outgrowth of the Special Task Force created by Obama in his first executive orders. The HIG was formed to do two main things. First, it serves as a mobile elite team of experienced interrogators who would collect intelligence and evidence to be used in criminal prosecutions. Second, it was tasked with establishing a scientific research program to examine the effectiveness of interrogation methods in hopes of finding best practices and “developing new lawful techniques to improve intelligence interrogations.” This makes the HIG “the first federally funded research program on interrogation since the 1950s.”

In the last five years, the HIG has published more than 90 scientific papers. From the get-go, under guidance by cognitive psychologist Christian Meissner, the HIG has ensured that all studies remain in the public domain to spur dialogue and testing of results among researchers, as well as to inform the general population. For example, Applied Cognitive Psychology published a special issue on the serious gap in research literature on the comparative effectiveness of different human intelligence gathering techniques. There is also a 46-page HIG booklet that offers an accessible view into the various controlled investigations completed, underway, and on the horizon. In general, the results (unsurprisingly) indicate that rapport-building approaches draw out more credible information than control-based (or coercive) methods.

In a recent conversation with Meissner, he also pointed out Shane O’Mara’s new book about the neuroscience of interrogation. It stresses that cognitive memory is at the heart of intelligence gathering, and pain and suffering disrupt one’s ability to remember events clearly. As just explained by O’Mara elsewhere, “given what we know of the brain, memory, mood and cognition, it is unsurprising that the information obtained from torture is so often utterly worthless.”

However, the AFM was last revised in 2006 and does not incorporate the latest research, which brings us back to the NDAA. The new legislation not only requires a thorough review of the AFM every three years — and that the manual and all its revisions remain entirely public (an obligation of real consequence) — the HIG is now required to submit a report on best practices that do not involve the use of force.

The HIG’s report will be made public by April 23. But both the Chair of the HIG’s Research Committee, Mark Fallon, and another high-profile member of the group, Steven Kleinman — widely recognized as an effective and prolific interrogator — have indicated their belief that the AFM should be rewritten. In fact, Fallon and Kleinman have specifically expressed concern that Appendix M of the AFM “could be interpreted to permit cruel methods, such as prolonged solitary confinement and sleep and sensory deprivation.” To this end, the group recently hosted a workshop on the technique of “separation” as detailed in the manual. Thus, the HIG certainly appears poised to use the opening offered in the new legislation as an opportunity for further reform based on science.

Predictably, the HIG has its opponents and naysayers. In the reporting cited here and above, there are anonymous sources trying to discredit the group, their ability to navigate the politics of Washington, and even the effectiveness of their interrogations. (The final critique would seem the most absurd considering the HIG’s commitment to methodically tested techniques.) Such an effort to undermine the group could pose a threat to its future as politics will inevitably play a role — even in the application of science.

Nonetheless, Meissner remains quite optimistic. To close our conversation, he offered this assessment of the HIG’s work thus far:

I see a different landscape in the next 5-10 years. This has been a long time coming as interrogators and trainers are hungry for this science. History will undoubtedly judge what Obama and the HIG have begun as a positive advancement.

Integration

It is my belief that the HIG and its commissioned research team offer an opportunity to bolster the peremptory international norm against torture by filling a troubling lacuna. Providing methodically tested evidence as to why ill-treatment is counterproductive, and offering alternatives that are scientifically proven to get better results, surely reinforces the codified illegality of ill-treatment.

In recent years the concept of inter- and transdisciplinary work has been gaining ground as a valuable method for addressing complex societal problems. As we have seen, the particulars of the NDAA’s Section 1045 plainly integrate the concepts of formal validity (legality) and empirical validity (efficacy), and I would suggest that this approach be embraced by jurists, scientists, and moralists alike. For even if axiological validity (morality) is not clearly addressed in this legislation at first glance, a legitimate question is truly raised:

If an act is patently illegal in all circumstances — and scientifically shown to lessen our chances of averting disaster — how could it possibly be moral? 

About the Author(s)

Steven J. Barela

Research and Teaching Fellow at the University of Geneva in the Global Studies Institute and a member of the Faculty of Law. He was a flight attendant for United Airlines on 9/11 who turned to academia in its wake to study counterterrorism and specialize in interdisciplinarity. You can follow him on Twitter (@StevenJBarela).