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Congress is Facing Decisions on Torture, and Needs to Treat Them As Such

On October 17, the Senate Intelligence Committee held a hearing on Christopher Sharpley’s nomination to become the next CIA inspector general. He has been the agency’s acting IG since early 2015. Much of the hearing focused on the ways in which Sharpley (mis)handled the “torture report”—the committee’s 6,700-page oversight study of the CIA’s former detention and interrogation program.

In a series of exchanges with committee members, Sharpley explained how, on his watch, the IG’s office lost the disk on which the report was transmitted (but didn’t really lose it), and then destroyed the disk (but didn’t really destroy it). More troubling, it was Sharpley, and Sharpley alone in his words, who decided to comply with Chairman Richard Burr’s (R-N.C.) demand—made to every executive branch recipient—to return the report, unopened and unread, to the committee.

Sen. Ron Wyden (D-Ore.) was not impressed: “If your office and the committee are going to be erasing historical records because somebody down the road is unhappy with them,” he said, “our country is going to need a lot of erasers.” Wyden worried aloud about the precedent Sharpley’s decision set, and was so exasperated by the nominee’s refusal to acknowledge as much that he spontaneously announced his intention to vote “no” from the dais. Sen. Martin Heinrich (D-N.M.) followed up by pointing out that the report includes chapters dealing specifically with the IG’s office, then asked Sharpley if he at least “consider[ed] reading the report before returning [it]…so you could do your job more effectively?” “No, I did not,” Sharply replied. He conceded that he could have done so, but “chose not to.” Ranking Member Dianne Feinstein (D-Calif.) took a moment to remind Sharply of the obvious: “The point of distributing [the report] to the departments was in the hope they would read it, not look at it as some poison document, and learn from it.”

Committee members must now decide whether to advance Sharpley’s nomination. If they do, it will be up to the full Senate whether to confirm him.

These votes are two in a series of upcoming decisions that, to varying degrees and in different ways, will speak to the strength and durability of lawmakers’ commitment to the prohibition on torture. Some of these decisions, which I describe below, may not be understood as such—particularly in policy circles—but they should be. 

Congress has made important strides in recent years toward building a bipartisan consensus against torture. For example, responding to allegations of cruelty and abuse by U.S. forces and seeking to prevent their repetition, the Senate passed the 2005 Detainee Treatment Act (DTA) by a vote of 90-9. In 2009, by a vote of 14-1, the Senate Intelligence Committee opened an investigation into the CIA’s “enhanced interrogation program,” which culminated five years later in the torture report. The horrors and failures described in the report’s executive summary drove Congress again to step in; Sens. Feinstein and John McCain (R-Ariz.) introduced an amendment to the FY2016 defense authorization bill to reinforce safeguards against a return to torture. Like the DTA, the McCain-Feinstein amendment passed by an overwhelming bipartisan majority, including support from the chair and ranking members of the Intelligence, Armed Services, Judiciary, Foreign Relations and Homeland Security Committees.

Of course, the legislative branch’s progress on torture has not been uniform, and there is work still to be done. But the trend line points in the right direction. Congress needs to make sure that continues. Any backsliding on torture cracks open a door that Congress has taken significant steps toward sealing shut. Given the president’s open embrace of torture, and the distaste that some in his administration have shown for congressional oversight, that is not a risk that lawmakers can afford to run.

The Bradbury nomination

If you Google Steven G. Bradbury, you get a steady stream of returns discussing his role facilitating torture as acting head of the Justice Department’s Office of Legal Counsel from 2005 to 2009. Indeed, Bradbury repeatedly signed off on the full slate of “enhanced interrogation techniques”—including waterboarding and 180-hour sleep deprivation, often accompanied by shackling. Neither enactment of the DTA (explicitly designed to prevent cruel, inhuman and degrading treatment) nor the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld (holding that Common Article 3 of the Geneva Conventions protects detainees in the conflict with Al Qaeda) was enough to stop him. The CIA again sought legal cover in 2007 and Bradbury authorized every abuse that the agency proposed to inflict. In a move at once illuminating and ill-considered, Bradbury justified his conclusions in part by misrepresenting that several lawmakers—including former prisoner of war and torture survivor Senator McCain—understood and were fine with what the CIA was doing. In fact, McCain had previously told the CIA he thought sleep deprivation was torture, and several other Senators raised objections to the agency’s program months prior to Bradbury’s 2007 memo.

In June, President Trump nominated Bradbury for general counsel at the Department of Transportation. Bradbury passed out of committee in August on a straight party line vote (14-13), but Sen. Tammy Duckworth (D-Ill.) made plain why his nomination cannot be about politics: “When you’re stuck bleeding in a helicopter behind enemy lines like I was, you hope and pray that if the enemy finds you first, they treat you humanely. Mr. Bradbury lacked moral conviction in the Bush White House, and I don’t think he can be trusted to stand up for the values I fought to defend, especially not in a Trump Presidency.”

On Wednesday, in the context of a different confirmation vote, Senator McCain announced that he would oppose “any nominee who in any way has supported the use of enhanced interrogation.” Senate Majority Leader Mitch McConnell (R-Ky.) filed cloture on Bradbury’s nomination anyway, and a vote is scheduled for Monday evening (Nov. 13).

The full Senate is now all that stands between Bradbury and a senior position of government trust. This vote is about accountability and about Congress leaving no doubt that, as Sens. Susan Collins (R-Maine) and Angus King (I-Maine) have said previously, lawmakers believe “[t]orture is wrong” and have a responsibility to “make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again.”

Congress refused to confirm Bradbury once during the Bush administration, when less was known about the horrors of the program he helped authorize. Will lawmakers demonstrate the courage of their convictions again now?

Detention and treatment of asylees and immigrant torture survivors

On October 8, President Trump wrote Senate and House Minority leadership with a set of immigration-reform demands that the President said must be included as part of any legislation addressing the status of Deferred Action for Childhood Arrivals (DACA) recipients. Both Sen. Chuck Schumer (D-N.Y.) and Rep. Nancy Pelosi (D-Calif.) made clear that the President’s “from the desk of Stephen Miller” wish list was dead on arrival. That is undoubtedly true, taking the White House’s proposal as a whole. The question is whether any of the individual policies and principles that comprise it will end up on the negotiating table (probably yes), and if so which ones.

Several of the White House’s desired legal and policy changes would be devastating to torture survivors. For example, the President wants to ratchet up the standard of proof at the initial screening stage for arriving noncitizens who express a fear of torture (or other types of persecution) if returned to their country. He wants to jail more asylum seekers for the duration of their immigration court proceedings. And he wants to remove more asylum seekers through an expedited procedure that affords them minimal due process.

There are two predictable consequences of these “reforms:” refoulement and retraumatization. The former is unlawful and the latter both needless and cruel. My organization, the Center for Victims of Torture (CVT), extends rehabilitative care to thousands of torture survivors every year. As we explained in Tortured and Detained: Survivor Stories of U.S. Immigration Detention, many survivors remain captive to their traumatic past. They are haunted by “intrusive memories, excessive rumination and nightmares, with repeated episodes of actively re-experiencing past traumas.” They have often “lost their sense of safety” and “feel that their identity and role in society is erased.” They struggle with “sleep disorders, anxiety, chronic pain, irritability, startle responses, suicidal ideation and depression.”

Detention exacerbates these harms. (Obviously so too does forcing somebody back to the country where she was tortured and fears she could be again.) It subjects torture survivors, and asylum seekers fleeing other types of persecution, to a profound sense of powerlessness and ongoing dread at the prospect of being returned to torture and abuse. All of this risks recapitulating survivors’ traumatic pasts.

Unfortunately, several of the President’s asylum-related demands have been percolating in Congress for some time. Passing them would undermine the prohibition on torture. If lawmakers want to get serious about reforming the immigration detention system, they should look instead to Reps. Pramila Jayapal (D-Wash.) and Adam Smith (D-Wash.), whose Dignity for Detained Immigrants Act is a fact (as opposed to myth) based legislative response to the system’s many failings. Notably, and appropriately, their bill prohibits detaining torture survivors and other vulnerable groups at all unless the government shows that placement in a community-based supervision program is unreasonable or impracticable.   

Funding for torture survivor rehabilitation

Since ratifying the Convention Against Torture (CAT) in 1994, the United States has submitted several periodic reports to the treaty’s monitoring body—the Committee Against Torture—describing implementation of the rights CAT guarantees. In each of those reports, the government discusses funding it provides for torture rehabilitation services. This includes grants from the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) to torture rehabilitation centers serving survivors inside the United States, as well as similar State Department (Bureau for Population, Refugees and Migration) and USAID funding for programs serving survivors abroad. It also includes the United States’ contribution to the UN Voluntary Fund for Victims of Torture (UN Fund), which assists torture victims and their families through a variety of channels.

President Trump’s proposed FY2018 budget would reduce some of these funding streams; in particular, it would zero out the account that pays into the UN Fund. Thankfully, congressional appropriators appear poised not to let that happen.

In the Senate, the full Appropriations Committee has approved FY2018 bills for both the Department of Labor, Health and Human Services, Education and Related Agencies (Labor-HHS), and the Department of State, Foreign Operations, and Related Programs (SFOPS). The former allocates just under $11 million to ORR’s Victims of Torture Program. The latter provides for a $6.55 million contribution to the UN Fund and $12 million to support USAID’s Victims of Torture Program. These appropriations track previous years, with a slight increase in the case of USAID.

In the House, the full chamber has passed all twelve of its annual appropriations bills. The funding package mirrors the Senate Labor-HHS allocation for ORR’s Victims of Torture Program. It does not provide line items for either the UN Fund or USAID’s Victims of Torture Program, though that is consistent with past practice.

The House and Senate bills now move to conference, where appropriators will look to reconcile differences between them and (at least in theory*) craft an omnibus bill on which both chambers will vote—then send to the President’s desk for signature—by December 8, the date through which the government is currently funded.

Conference negotiations necessarily involve at least a degree of compromise. Some items get prioritized. Others get traded away. Lawmakers should protect torture survivor rehabilitation funding. Failure to do so would not only send a terrible message, but also directly harm thousands of survivors and their families who depend on the services this funding provides as they struggle to reclaim their lives.

*Perhaps more likely in practice is a short-term Continuing Resolution that extends government funding at current fiscal year levels.

Image: Joe Raedle/Getty

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About the Author

Washington Director of the Center for Victims of Torture