To The New CIA Director: Keep Your Promise On Torture

A week ago, the newly-confirmed CIA Director Mike Pomeo gave his promise not to torture. In response to a question by Sen. Diane Feinstein (D-CA) as to whether he would restart the enhanced interrogation techniques that are currently prohibited by the Army Field Manual:

“Absolutely not,” Pompeo stated. “Moreover, I can’t imagine I would be asked that by the President-elect.”

And to Sen. Martin Heinrich’s (D-NJ) request that he confirm that the CIA is out of the enhanced interrogation business. “Yes, you have my full commitment,” Pompeo said.

But a CNN headline over the weekend nonetheless described Pompeo as “open to waterboarding.” This was based on Pompeo’s written responses to post-confirmation questions for the record, in which Pompeo states that he plans to “consult with experts at the Agency and at other organizations in the U.S. government on whether the Army Field Manual uniform application is an impediment to gathering vital intelligence to protect the country.”  Pompeo further suggested that he thinks, or is at least open to the possibility, that a prohibition on waterboarding may be just such impediment – noting that no “exact scientific study has not been performed as to whether less coercive methods could have produced the same results.” And he committed to determine whether “any rewrite of the Army Field Manual is needed.”

Put it all together, and it looks like he’s opening the door to torture.

But in the same written document, Pompeo also committed to the following:

Any Army Field Manual rewrite must “fully comply with law, including laws governing the treatment and interrogation of individuals.” And the law  clearly prohibits torture as well as–thanks to the 2005 Detainee Treatment Act–any form of cruel, inhumane, or degrading treatment.  It thus prohibits waterboarding, which is a form of torture and has been prosecuted as such since the Spanish American War.  It also prohibits the other enhanced interrogation techniques—such as stress positions and confinement in small boxes—that all, at a minimum, constitute cruel and inhuman punishment, even if somehow construed to fall short of torture. So presumably any rewrite would not, as he explicitly promised Senators Feinstein and Heinrich, allow for any of these unlawful techniques.

And just in case Pompeo is waffling in the way that CNN and others have suggested, here are four quick reminders why re-initiating torture, or any of the enhanced interrogation techniques, would be a very bad move.

First,  the interests of his new employees. The use of torture and other forms of abuse puts CIA employees at risk. Former CIA employee Sabrina De Sousa, as well as close to two dozen other agents, have been prosecuted and convicted in absentia for their role in the kidnapping and ultimate torture of an Italian cleric. Others face at least the possibility of prosecution by other nations asserting universal jurisdiction over the crime torture; those named as having being involved in the program are presumably now fearful every time they travel outside the United States. And even if those involved ultimately escape prosecution, they face costs to their personal and professional reputations.  (See Jack Goldsmith and Alex Whiting on this point.)

Moreover, while those that designed or aided the enhanced interrogation program have been protected from prosecution at home, that has been due, in at least part, to the fact that they were relying on Justice Department memos defining the techniques as lawful. Those memos have since been rescinded. And even if the new Department of Justice would re-issue such justifications (which is itself doubtful; see JackAlex, and David Luban on this point as well), the claimed reliance on legal counsel defense would look a lot more thin.   Presumably, Pompeo would not want to ask his employees to take on that kind of risk.

Second, the costs to international cooperation. A range of countries will  be unwilling to cooperate with the United States on a range of critically import activities from intelligence sharing from joint counterterrorism operations to the transfer of detainees to US custody and control if the United States re-ups its torture program.  The European Charter of Human Rights would prohibit such cooperation by all EU countries, and other key allies would no doubt interpret their laws in the same way. This would have obvious costs to our security – and to the mission that Pompeo is now charged with pursuing.

Third, the loss of long-term incapacitation options. One of the biggest lessons of 9/11 is that we need an end game. By taking detainees into custody and then torturing them, we made it impossible to prosecute them, whether by military commission or in civilian federal court. And while some may say that we can simply put these detainees into law of war detention, it turns out that is an unstable source of long-term incapacitation.

Not only have law of war detentions at Guantanamo and elsewhere been the subject of protracted litigation and controversy (there is a reason that even George W. Bush wanted to close Guantanamo by the time he left office), but at some point the underlying conflict will be over. And thus the legal justification for continued detention will end as well. At that point, the United States may be in the position of transferring or releasing a detainee that could have, if prosecuted, been kept behind bars for life.

And, finally, in case Pompeo needs one more reminder, here’s a letter from 176 retired flag officers from all branches of the US military emphasizing that torture – including all of the so-called “enhanced interrogation techniques”—violate both international and domestic law. As they eloquently write, torture is “unlawful;” it is “counterproductive;” it “violates our core values as a nation;” and “[o]ur servicemen and women need to know that our leaders do not condone torture or detainee abuse of any kind.”

Image: Alex Wong/Getty

 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).