Since Donald Trump’s election victory last week, attention has turned to figuring out which promises he will keep and which he will abandon. Regarding torture, there have been mixed signals. During the campaign, Trump endorsed the use of torture on several occasions, saying that “torture works” and that he would bring back waterboarding and “worse.” Later he said that he would “not order” acts that would violate any laws or treaties, but he did not specifically repudiate the use of waterboarding or other techniques widely considered to amount to torture. Since Trump’s election, he has not spoken himself on the issue, but Republicans in Congress have made statements in both directions: Arkansas Senator Tom Cotton said that waterboarding is not torture and that Trump will need to decide whether to bring back its use, whereas Michigan Congressman Mike Rogers declared that the waterboarding remarks were just “campaign talk.” Senator Jeff Sessions, just selected to be Attorney General, voted against legislation in 2005 prohibiting abuse of detainees (the Detainee Treatment Act of 2005, discussed below), and suggested in floor debate that “terrorists” should be afforded fewer legal protections than prisoners of war.
As Trump considers whether to bring back waterboarding and other forms of torture, he would do well to remember the lessons learned from the last time a Republican administration resorted to such techniques, and the ultimate repudiation of those methods by many within the government itself, including by senior Republicans. Moreover, the fallout from that time, and changes in the law, mean that going forward it will be much more difficult for government officials to obtain, or rely on, legal cover for waterboarding or other acts of torture. Although lawyers during the Bush administration famously fashioned legal justifications for torture through, forgive the pun, tortured reasoning, that path is no longer available. Therefore, government actors at all levels will have to consider the legal exposure that they will face if they participate in any way in waterboarding or other acts of torture, even if they are ordered to do so by superiors.
The Torture Memos and DOJ Repudiation/Sanction
Shortly after 9/11, government officials resorted to waterboarding and other forms of torture, sanctioned by a series of secret memos issued by the Department of Justice’s Office of Legal Counsel (OLC) under the direction of Jay Bybee and drafting by John Yoo. To avoid dissent, these memos were not widely vetted within the government. To the extent the legal opinions and ensuing detainee mistreatment became known, they were controversial from the start and some within the government immediately dissented, such as the general counsel of the Navy Alberto Mora, FBI Agent Ali Soufan, and other officials within the military. In time, many others within the administration turned against waterboarding and other forms of torture for legal, moral and pragmatic reasons.
In late 2003, Jack Goldsmith became the new head of the OLC and soon overruled the principal OLC memo of 1 August 2002, which came to be known as the “torture memo,” as well as another memo from March 2003, after determining the legal reasoning to be “tendentious, overly broad and legally flawed.” Goldsmith later spoke and wrote publicly about this period because he hoped that “future presidents and people inside the executive branch [could] learn from [the] mistakes [of the Bush administration].”
The torture memos were born in a degree of secrecy that made their fundamental errors possible, but future government lawyers should understand from the experience of the Bush years that continued secrecy for such policies is impossible to maintain and that in time the treatment of detainees, and legal opinions and orders sanctioning abuse, will see the light of day and have to be defended publicly. The leak of the torture memo in June 2004 unleashed a series of legal developments, investigations and public criticism that should be instructive to future government actors.
After the torture memo became public, Congress passed the Detainee Treatment Act of 2005, prohibiting the “cruel, inhuman, or degrading treatment or punishment” of detainees, further closing off specious legal arguments justifying detainee mistreatment. The Act was sponsored by John McCain, who will continue to oversee the Department of Defense in his role as Chairman of the Senate Armed Services Committee. In 2006, the Supreme Court held in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions – prohibiting torture as well as outrages upon personal dignity, in particular humiliating and degrading treatment – applies to all detainees. In 2015, an amendment to the National Defense Authorization Act took the significant step of limiting all interrogations to techniques found in the Army Field Manual, which explicitly prohibits waterboarding, beatings, and sexual humiliation. These changes in the law will make it harder, if not impossible, to sanction torture or cruel and degrading treatment in the future.
The torture memo itself quickly faced an avalanche of crushing criticism and legal scrutiny. Harold Koh described it as “perhaps the most clearly erroneous legal opinion I have ever read.” Other legal experts offered similar judgments, including Scott Horton, Cass Sunstein and Martin Flaherty. A group of more than 100 legal experts plus twelve former judges and a former FBI director called for a thorough investigation of all of the OLC memos justifying detainee mistreatment.
Perhaps of greater interest to future lawyers who will have to consider these issues is the five-year investigation of DOJ’s Office of Professional Responsibility (OPR) into the ethical conduct of Bybee and Yoo in drafting and issuing the memos. In July 2009, OPR concluded that John Yoo committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” Regarding Bybee, the report found that he committed “professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” DOJ’s ordinary practice would have been to forward OPR’s conclusions to the respective state bars of Bybee and Yoo, which could have resulted in sanction, including disbarment. This never happened because OPR’s recommendation was overruled by Associate Deputy Attorney General David Margolis, but it is important to understand why. Margolis found that while the memos contained “significant flaws” and that “Yoo and Bybee exercised poor judgment by overstating the certainty of their conclusions and underexposing countervailing arguments,” neither acted intentionally or recklessly. Specifically with respect to Yoo, Margolis found that:
I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.
Regarding Bybee, Margolis found that he only exercised a supervisory role with respect to the memo and was not reckless in his reliance on Yoo and other lawyers within the OLC.
But this was a one-time pass, and Yoo and Bybee used it up. Given the near universal repudiation of the approach and logic of the torture memos, future government lawyers (and supervisors) will not be able to argue that they acted in “good faith” if they seek to advance similar arguments supporting the legality of conduct plainly amounting to torture or cruel and degrading treatment. As Harold Koh has written, lawyers engaged in a process of crafting guidance on these issues should be particularly concerned when that process excludes actors that normally would be expected to provide input.
Similarly, future government actors who might rely on orders or “legal cover” to engage in such activities should be on notice of their own potential legal exposure down the road. Those who engaged in acts of torture or cruel and degrading treatment during the Bush years escaped criminal prosecution because the Obama Justice Department also concluded that they were acting in “good faith” in reliance on the legal memos and orders sanctioning their conduct. But this was also likely a one-time get out of jail free card. Nuremberg established the principle that superior orders cannot be a defense to international crimes unless the orders are not manifestly unlawful. Future government officials should now be aware that it will not be sufficient to simply rely on “legal” opinions or orders when they know that the conduct, according to the best understanding and consensus view of the law, amounts to torture or cruel and degrading treatment.
Potential US coalition partners will also be further constrained in the ability to cooperate with US forces should there be a return to torture or cruel and degrading treatment. Already during the Bush years, the news that the US was mistreating detainees also caused US allies to begin to restrict their cooperation with the US. Decisions from the European Court of Human Rights (ECtHR) against Macedonia and Poland, brought by individuals surrendered to the US and tortured, will make potential US partners even more wary about cooperating if there is any hint of a return to detainee abuse. In Case of El-Masri v. The Former Yugoslav Republic of Macedonia, the ECtHR held Macedonia responsible and awarded damages for that country’s complicity in surrendering Khaled El-Masri to US custody where he was tortured and ill-treated. In the cases of Al-Nashiri and Husayn (Abu Zubaydah) v. Poland, the ECtHR found against Poland and awarded damages for the torture of detainees at US black sites on Polish soil. These cases will make future coalition partners think twice before participating in any joint operations that could result in detainee abuse. To the extent officials in the Trump administration want to rely on other states to assist in military and national security operations, it should think hard before returning to the detainee abuse practices of the Bush administration.
The Bush administration learned the costs of embracing torture and detainee abuse the hard way, and in time many officials within that administration moved sharply away from these practices. The scrutiny of that period and investigations that followed, as well as changes in the law, should make a return to those practices more difficult. Jack Goldsmith, who overruled the torture memo, later wrote in his book, Power and Constraint, that these developments and the scrutiny of executive branch practices by civil society, journalists, Congress and the courts – what he calls the “presidential synopticon” – will “almost certainly” prevent a return to past interrogation practices (p.238-39). Will the Trump administration pay attention to these lessons? We will soon find out.
Image: US Dept. of Defense, “Water Detail” in the Philippines, 1901.