What Is the Next Line of Defense Against Torture?

Gina Haspel’s recent elevation to director of the Central Intelligence Agency (CIA) despite her involvement in the George W. Bush administration’s prisoner abuse program and in the destruction of related evidence can be viewed as a part of the Obama administration’s failure to hold anyone accountable. Such impunity may even violate international law, considering the United Nations Committee Against Torture’s admonition against actions that “preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators.” The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also requires remedy and redress to victims (ensuing mental health problems being an important reason for this obligation) and the UN Committee makes detailed comments on implementation.

The inability to deter future ill-treatment by holding violators accountable, nor to address victims’ rights, makes it all the more important to examine other mechanisms that might impede further backsliding. Several significant developments regarding anti-torture efforts related to interrogation may help. First, the McCain-Feinstein amendment adopted under Obama, Section 1045 of the 2016 National Defense Authorization Act (2016 NDAA), established barriers to torture, however penetrable they may be. Second, a growing body of science demonstrates that building rapport is more effective for eliciting information from a detainee than confrontational techniques. Third, an initiative was launched in 2016 to integrate such emerging science and effective practice into international law by establishing protocols for interviewing detainees without coercion. As today is the UN International Day in Support of Victims of Torture, it is fitting to explore and broadcast these efforts as a next line of defense against torture.

Legality and Transparency

The 2016 NDAA engraved into the law books the restriction in Executive Order 13491, signed on Obama’s second day in office. The order required all agents of government to adhere to the 2006 Army Field Manual (AFM), which explicitly bans the foulest forms of cruelty, e.g. waterboarding, beatings, electric shocks, hooding, sexual humiliation, mock executions, forced nudity, or the use of military dogs. This was a significant change because the Bush administration felt free to institute practices that it determined (behind closed doors) did not involve severe pain and suffering. In other words, toying with the threshold question of what constitutes torture was a contrived loophole in the Office of Legal Counsel (OLC) memos. But the new law forecloses this legal dodge by authorizing only techniques listed in the AFM; practices not listed are illegal.

Of course, there is a section of the Army Field Manual — Appendix M — that continues to be of real concern. It allows separation of detainees who are not classified as prisoners of war and who are determined to be of intelligence value. The manual indicates that this is meant to prevent prisoners from “learning counter-resistance techniques or gathering new information to support a cover story; decreasing the detainee’s resistance to interrogation.” However, human rights bodies zeroed in on this technique in 2014, saying it opens a door to ill-treatment, and leaked documents shed light on this problem during the Obama era.

The technique raises a number of serious issues: 1) as it requires only four hours of continuous sleep during each 24-hour period, it effectively allows sleep deprivation and manipulation; 2) combining disrupted and limited sleep with other methods compromises otherwise effective techniques; and 3) it runs the risk of devolving into incommunicado detention. While restricting all interrogations to the AFM can be seen as a general advancement, this appendix needs to be revised or removed.

So pinning the legality of interrogation techniques to the AFM has brought both advancements and problems. Additionally, respected board members from the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania pointed out recently that revising the AFM is “most likely the door through which torture would re-enter” into US practice without congressional approval. This is a real danger, and we should be worried about this possibility.

Nonetheless, the McCain-Feinstein provision in the 2016 NDAA does contain hurdles to the resumption of torture. The draft executive order leaked in the first days of the Trump administration, for example, caused genuine alarm, but it also acknowledges the restrictions in the new law, saying the NDAA “provides a significant statutory barrier to the resumption of the CIA interrogation program.” After the leak of the draft, Sen. John McCain (R-AZ) highlighted this point. The president could sign executive orders, he said, “But the law is the law. We are not bringing back torture in the United States of America.”

Importantly, the law requires that the AFM remains public and that it be reviewed to ensure it complies with all “legal obligations of the United States” and that the practices outlined don’t “involve the use or threat of force.” Such reviews are to be carried out by Defense Secretary James Mattis in consultation with Attorney General Jeff Sessions, FBI Director Christopher Wray, and Director of National Intelligence Dan Coats.

The fact that the AFM must remain freely available intensifies scrutiny and forces a spotlight on these officials, each of whom has shown independence from this president at one time or another. Moreover, any modifications to the manual adopted by the Secretary of Defense must be made available to the public 30 days before taking effect. Even if distorted interpretations of law were employed under Bush, public attention had an impact in that the OLC “torture memos” only survived while kept secret. Considering this history, these requirements of transparency can be meaningful.

Perhaps most notable is the fact that each of the officials would have to take a public stand during the review, knowing that introducing abusive techniques would endanger captured US soldiers. When in the public domain, the AFM essentially invites both friendly and rival states to emulate the tactics we deem as legal and a part of our practice. Though President Trump’s words and actions indicate he has no compunction about using abhorrent practices and may well see a political benefit in acting tough with “bad guys”, finding support for that position is difficult because it could risk the inhumane treatment of our own soldiers. Might Trump’s declaration that he will allow Mattis’ view to “override” on this issue be a sign that the law is actually working?

Still, these legal and political barriers to torture are by no means impregnable. Ill-treatment might already be happening. It took years before the public became aware of the torture introduced under Bush. The fact that we know about a US citizen being denied a habeas corpus review in Iraq raises questions as to what might be happening to non-citizens. Yet a recent CERL paper illuminates an essential point here: “While the president may, by way of his executive authority, authorize the emergency use of techniques that amount to torture, he does not have the authority to alter the illegality of such acts.” That is, if they are not in the AFM, they are still criminal acts.

Recognizing the stark illegality of torture in US law today is extremely important, as is acknowledging this was always the case during the Bush years. 

Science and Practice

Eradicating the practice of ill-treatment also demands efforts beyond erecting legal barriers. It requires an examination of science, as expressed powerfully in a letter from 176 flag officers to President-elect Trump:

Torture is unnecessary. Based on our experience — and that of our nation’s top interrogators, backed by the latest science — we know that lawful, rapport-based interrogation techniques are the most effective way to elicit actionable intelligence. 

The science referred to here stems from the first federally funded research program in decades to study the most effective interrogation methods. This project was led by the High-Value Detainee Interrogation Group (HIG), borne of Obama’s original executive order. It has commissioned over a hundred independent studies — all legal and ethical — and has been integrating the results into training and practice. Indeed, one of the unique pillars of this project was to bring together scientists and practitioners to establish a body of practical scientific knowledge.

This means that scientists are finally studying a vital research question that has been strikingly ignored over the last half-century. This is substantiated in the US government-backed 2006 landmark review, Educing Information, conducted in the shadow of revelations regarding ill-treatment across the globe in the name of intelligence gathering. This report revealed a stark and disturbing dearth:

US personnel have used a limited number of interrogation techniques over the past half-century, but virtually none of them — or their underlying assumptions — are based on scientific research or have even been subjected to scientific or systematic inquiry or evaluation.

While the 20th Century and beyond have been marked by unprecedented advances using scientific enquiry, interrogation methods have generally been left to intuition, anecdotal experiences, and even myth. Advances in physical sciences such as DNA, for example, have reversed convictions of innocent people who had been incarcerated for decades, many of whom had made false confessions to crimes they did not commit.

Eight years of funded research has produced a growing corpus of unclassified and peer-reviewed studies from the HIG in more than 120 published journal articles and book chapters by respected research psychologists from the US and abroad. In 2016, the research was brought together in an important document entitled, Interrogation: A Review of the Science. It puts forward a critical conclusion (and referred to above by the flag officers):

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.

Other experts have also used safe scientific methods to directly challenge the utility of inflicting severe pain and suffering. Shane O’Mara, a professor of experimental brain research at Trinity College Dublin, outlines his neurological and biomedical findings in his book, Why Torture Doesn’t Work: The Neuroscience of Interrogation. Cognitive memory is at the heart of intelligence gathering since a suspect must recall information under questioning, and O’Mara shows that abuse directly disrupts the brain’s functioning. “Torture is a profound and extreme stressor that causes widespread and enduring alterations to the very fabric of the brain — including in connections between brain cells (synapses) on which memory depends,” he writes. When paired with the comparative analyses of the HIG, this is an incisive and cutting indictment of torture’s effectiveness.

Integrating Science and Practice into International Law

At the end of his term in 2016, then-UN Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Prof. Juan Méndez, released a report in which he advocated for the creation of a “universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices.” Such a standard-setting instrument would encourage compliance with the laws and offer substantiated guidance for effectively interviewing suspects.

Great work has been done to gather testimony and records from professional investigators and scientists who have repeatedly emphasized that interviews are much more effective without resort to torture, ill-treatment, or coercion. In fact, the current and former chairs of the HIG Research Committee, along with O’Mara, were invited to participate in the development of the thematic behind this initiative.

Practitioners and psychologists in the U.K. had already been developing the effective practice of investigative interviewing (also known as the “PEACE” model) in the 1980s and 90s. Instead of focusing on extracting a confession via accusation and manipulation, this approach aims at fact-finding and begins with a presumption of innocence.

It has been such a successful practice that it is migrating to other parts of the globe, such as Norway, New Zealand, Vietnam, and beyond. Méndez has been working with experts from these various jurisdictions and told the UN General Assembly in issuing his 2016 report, “Scientific data and irrefutable evidence from the criminal justice system demonstrate that coercive methods of questioning, even when not amounting to torture, produce unreliable information and false confessions, and are indeed counterproductive for public safety.”

Current Work

The international law initiative to develop a set of guidelines on non-coercive interviewing and procedural safeguards will be worth watching, as a Steering Committee of legal experts, scientists, and practitioners has been established to move it forward. In the spirit of full disclosure, I have been invited to serve on the ancillary Advisory Council for this initiative. Moreover, I am currently working with co-editors Mark Fallon, Gloria Gaggioli, and Jens David Ohlin, along with 27 other contributors from 13 countries, to explore these developments in an edited volume for Oxford University Press. Thus it should not be surprising that these particular angles of anti-torture efforts strike me as important in a worrisome time.

While the Obama administration did not employ accountability measures to deter torture in the future and failed to address the rights of victims, the legal and scientific efforts outlined here can be seen as a part of a bulwark to hinder a full return to ill-treatment in the US. Amplifying the arguments they provide just might help guard against torture’s return.

Photo by Mark Wilson/Getty Images 

About the Author(s)

Steven J. Barela

Research and Teaching Fellow at the University of Geneva in the Global Studies Institute and a member of the Faculty of Law. He was a flight attendant for United Airlines on 9/11 who turned to academia in its wake to study counterterrorism and specialize in interdisciplinarity. You can follow him on Twitter (@StevenJBarela).