Donald Trump does not want to let the torture debate die. He was vociferously supportive of torture on the 2016 campaign trail. Once elected president, he nominated Mike Pompeo, a Republican congressman from Kansas, to lead the CIA. Pompeo’s past statements supporting the use of torture and the Guantanamo Bay detention camp might have been partly what drew Trump to him, but they also raised eyebrows on Capitol Hill. During his Senate confirmation hearing, Pompeo told lawmakers that he would not permit the use of torture during interrogations, but in his follow-up written responses to lawmakers’ questions, he seemed to retreat from this pledge.
Now that Pompeo again faces Senate confirmation—this time to head the State Department—his positions on this issue should face renewed scrutiny, as should Trump’s new nominee for CIA chief: Gina Haspel. She needs to explain what role she played in the operation of a “black site” facility in Thailand, the torture of detainees, and the destruction of certain interrogation videotapes.
Trump’s picks for senior positions at the Departments of Justice and Transportation have also had ties to the torture program. Meanwhile, it’s retired Marine Gen. Jim Mattis, Trump’s defense secretary, who seems to have prevented the president from attempting to resurrect the regrettable torture practices that were made illegal before he entered office. Mattis told Trump in November 2016 that torture isn’t effective.
While Trump’s executive picks have generated considerable publicity due to their support for or history with Bush-era torture and detention policies, his administration’s choices for federal judges have seemingly produced far less uproar, despite their sometimes questionable, if not outright troubling, roles related to these programs. This trend, which has long-term implications, alarms me not only from a legal perspective but also as a former Army intelligence officer. At least three such judicial nominees have already been confirmed, but there is still time for the Senate to reject Howard Nielson, who has been nominated for a seat on the U.S. District Court for the District of Utah. The Senate Judiciary Committee approved his nomination in February, but the full Senate has yet to vote on it.
Nielson’s history with accommodating the use of torture is disturbing. Beth Van Schaack, currently a fellow at Stanford and formerly the deputy to the U.S. Ambassador-at-Large for War Crimes Issues at the State Department, has extensively covered Nielson’s flawed legal acumen related to detention issues. About a memo Nielson authored while working at the Justice Department, Van Schaack wrote:
Nielson argued that the Geneva Convention devoted to the protection of civilians in enemy custody or detention only applies to civilians held on U.S. territory. That treaty (the 4th Geneva Convention governing international armed conflicts) requires signatories to treat all civilian detainees humanely and prohibits torture and other forms of mistreatment. If Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians—so long as they did so outside the United States—without breaching the treaty. Under the same reasoning, our adversaries could harm U.S. civilians in their custody, so long as the victims were not brought back to the territory of the belligerent in question … This warped interpretation finds no support in international or domestic jurisprudence, the treaties’ drafting history, the treaties’ humanitarian object and purpose, or legal scholarship (even scholarship advancing conservative readings of the treaties).
Nielson has defended a former leader of the Justice Department’s Office of Legal Counsel (OLC) who wrote the 2005 round of the notorious “Torture Memos.” In 2007, Nielson co-authored a letter to the editor of The Washington Post in response to the newspaper’s editorial criticizing his former boss at OLC, Steven Bradbury, for writing the memos. In the letter, Nielson and his colleagues explain that they had “worked with [Bradbury] on virtually every issue that has gone through the office, and each of us is intimately familiar with how the office has treated the legal issues that have come before it.” They also said that Bradbury, who was recently confirmed for a Department of Transportation position in the Trump administration, “is a careful lawyer of unimpeachable integrity and sound judgment.”
In post-hearing written responses to questions from senators in January, Nielson stated that this “letter was intended as a general defense of Mr. Bradbury’s professionalism against what we regarded as unfair attacks—I do not believe that I or any of the other deputies intended to speak to the merits of specific opinions.” Also in his written responses, Nielson said that he believes waterboarding both constitutes torture and is illegal, and that Bradbury’s memos were “properly withdrawn.” Still, Bradbury’s legal support for torture—a glaring misdeed, to be sure—was not, in Nielson’s view in 2007, concerning enough to prevent him from vouching for Bradbury’s professional judgment. What does that say about Nielson’s own judgment?
Perhaps Nielson deserves some credit for his participation in “reviewing and identifying the problems with” the original set of the “Torture Memos”—written in 2002 and 2003 by other former OLC officials—but it’s unclear precisely what position he promoted in the process. And on his specific role in the preparation of the Bradbury memos and a separate 2004 memo, he acknowledged that he “discussed some of the issues raised by the opinions with other attorneys in [OLC]” as part of a “review process” before the memos were issued. Again, it is unclear what his exact roles and positions were at the time. Should the Senate really rest comfortably awarding a lifetime judicial appointment to somebody with this lingering cloud of uncertainty obscuring his history on such a serious matter?
Setting aside the legal considerations, Trump’s pattern of ushering in officials—both executive and judicial—who have questionable records on torture and detention is also deeply disappointing to me from a pragmatic perspective as a former Army intelligence officer. By the time I commissioned as an officer in 2009, the United States had thankfully already turned a significant corner on torture and many of its detention policies. Although I was not an interrogator, I interfaced with interrogation facilities while deployed in Afghanistan and later completed an interrogation management course. I never felt that interrogators supporting my units should employ torture methods to try to extract better information. And if you want the perspective of more seasoned interrogation experts, look no further than this passage from a 2017 report by the High-Value Detainee Interrogation Group: “Based on the comprehensive research and field validation studies detailed in this report, it is concluded that the most effective practices for eliciting accurate information and actionable intelligence are non-coercive, rapport-based, information-gathering interviewing and interrogation methods.” In contrast, evidence indicates that torture is “counterproductive” because it often produces “fabricated information.” Torture and disturbing detention policies also aid enemy propaganda and recruiting.
And it’s astonishing that—in 2018—this point still requires reiteration: The barefaced immorality of Bush-era torture and detention policies does not comport with the American values we expect the U.S. military to both defend and exemplify, and from which it can claim a moral high ground. As Sen. Tammy Duckworth (D-Ill.), an Army veteran who was deployed to Iraq, wrote in an op-ed against Nielson, “His sanctioning of torture practices endangered our troops and diplomats serving abroad, who lost the power inherent in representing a country that was clear in its conviction that it does not torture.”
Moreover, I often worry that in the context of torture some people can fixate a bit too rigidly on legality and utility-based considerations. Laws prohibiting torture can still change, and that a practice complies with the law does not necessarily mean it is morally right. In addition, that a practice might at times be operationally fruitful does not mean it is morally acceptable. Morality therefore matters immensely in this debate—if not as a first priority, then at least as a backstop. Leaders with strong moral compasses and policies with sound moral underpinnings can help prevent a return to Bush-era practices.
Executive appointees who have in the past somehow supported or participated in Bush-era torture and detention practices are bad enough, and senators should take seriously the forthcoming Pompeo and Haspel confirmation processes. If these nominations are to make it through the Senate at all, it should, at the very least, not happen with a rubber-stamp approach, given the legitimate questions about their pasts. But executive appointees serve only temporarily, whereas federal judges enjoy lifetime tenure upon confirmation. If Mattis leaves the administration and can no longer curb Trump’s impulses to promote torture in interrogations or prevent the administration from exploiting a potential loophole in U.S. domestic law, who will protect the progress our country has made? And who would judge possible legal challenges involving the Trump administration or future presidents, who might also be inclined towards these draconian practices? The Senate can start by rejecting the Nielson nomination to ensure he is not one of those judges.