One could be forgiven for thinking that all signs point towards torture making a comeback. Calls for the resumption of torture have been disturbingly prominent in this year’s presidential campaign. More Americans are telling pollsters that torture may be justified than at any time since the September 11 attacks. And just last month, the courts ruled that the Freedom of Information Act doesn’t apply to the Senate Intelligence Committee’s report on the Bush administration’s detention and interrogation program, also known as the Torture Report, and last month it was revealed that the CIA Inspector General “mistakenly” destroyed its copy of that report.
This conclusion, however, would overlook the real changes that have occurred during the Obama administration that make a return to torture in a future administration practically impossible. President Obama and Congress have each taken actions to explicitly prohibit specific interrogation techniques employed during the Bush administration, including waterboarding. Meanwhile, current and former government officials who once defended the Bush administration’s use of torture are now arguing that the US government will not resume using such practices in the future.
Now is certainly not a time for complacency and the political and legal environment could change in a future administration. But the reality is that it is extremely unlikely torture will come back to the United States.
The rise of the Islamic State, often called ISIS or ISIL, has clearly shaken the American public, and has pushed into the election cycle aggressive calls for the United States to resume torturing suspected terrorists. While overheated rhetoric is a familiar companion in political campaigns, the public seems to be responding to it. A recent poll by Reuters and Ipsos demonstrated that Americans are embracing torture at unprecedented levels. That poll found that 63 percent of Americans believe that torture is often or sometimes justified, while only 15 percent thought it is never justified. To put these numbers into context, Pew has been polling those same questions since 2004, following the revelations of torture and abuse at Abu Ghraib — Pew’s responses never approached Reuters’ numbers.
In the face of the shift in public attitudes, we have clear evidence that torture is not effective and harms our security. Following exhaustive examinations of the application of torture during the Bush administration, the Senate Intelligence Committee released the executive summary of its Torture Report in 2014, which concluded that abuse of detainees was not only far more widespread and brutal than originally believed, but also that the interrogation programs did not produce reliable or new intelligence. Moreover, revelations of torture and abuse at secret prisons inhibited intelligence cooperation with key US allies and undermined the coalition against al-Qaeda.
There was intense partisan disagreement over the release of the Torture Report, and when the Senate switched hands in 2015, the new Intelligence Committee Chair, Sen. Richard Burr (R-NC), even went so far as to call the report a work of “fiction” and demanded the Executive Branch return its copies of the report to the Committee. The Obama administration did not comply with that request. But it did deeply disappoint anti-torture advocates with its reaction to it, both in its failure to hold any government officials accountable for the actions uncovered in this report and other investigations, and its decision to aggressively fight the report’s public release in the courts. It therefore came as no surprise that the office of the CIA Inspector General accidentally deleted its two copies of the report and destroyed the computer disc that contained it.
The partisanship on display after the release of the Torture Report can be contrasted, however, with the bipartisan effort to specifically prohibit the Bush administration’s “enhanced interrogation” tactics and other torture techniques. The 2016 National Defense Authorization Act mandated that the Army Field Manual on interrogation, which effectively bars the worst abuses listed in the Senate report, become the standard for interrogation across the US government, including by the CIA. While torture has been illegal in the United States since at least 1948, the specific prohibition of techniques not approved for the Army Field Manual (which has room for improvement, see here and here) and the requirement that the manual be regularly reviewed to ensure compliance eliminates any possibility that a future administration could develop a novel legal theory that a return to abusive interrogation was somehow permissible.
Even the Bush interrogation program’s backers have come around to the view that torture should never be used again. Former Bush CIA Director Michael Hayden, who defended the use of waterboarding by the Bush administration, said, “if some future president is going to decide to waterboard, he’d better bring his own bucket, because he’s going to have to do it himself.” And current CIA Director John Brennan, who was at CIA during the Bush administration and defended the agency following release of the Senate Intelligence Committee report, said recently, “I would not agree to having any CIA officer carrying out waterboarding again.” Importantly, the same Sen. Burr who described the Torture Report as fiction recently said, “I would not support bringing back waterboarding.”
These statements could be less about these officials’ views on the effectiveness of torture and may result from concern about the backlash torture generated and the political and legal exposure it created for intelligence officials. Regardless of their motivations, these are clear statements that torture is a terrible policy choice.
Furthermore, when taken together with the explicit prohibitions on torture now in the law, the resistance of senior Intelligence Community officials to return to waterboarding and other torture techniques establishes a strong barrier for the resumption of torture. Any future CIA Director is assuredly going to demand a credible legal opinion approving of new abusive interrogation techniques. The explicit legal prohibition now makes that practically impossible. There can be no accounting for a policy that deliberately breaks the law, but that is always the case.
Political currents can change. Today’s friends could be tomorrow’s foes. Laws can be rewritten. All of these things mean that those who believe torture is a moral and strategic abomination must remain vigilant. But we should not let the noise of a presidential campaign obscure the legal and policy consensus that a United States that is now more secure than it has been at any time since 9/11 must not resume torture.