October 9, 2015

The Next President Could Bring Back Torture

National Security, Torture, Waterboarding

by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

This sends a clear message to future presidents: They may choose to authorize waterboarding, and it is unlikely that their successor will hold them accountable, even if their successor recognizes waterboarding to be torture. Presidential candidates understand this. In 2012, there were indications that the Romney campaign was open to the use of waterboarding if Romney won the election. This year, several candidates for the presidency have either endorsed the use of waterboarding or refused to rule it out. Carly Fiorina claims, contrary to the Senate torture report, that waterboarding was used when no other method would extract necessary information from a prisoner. Fiorina dismisses the Senate report as “disingenuous” and undermining the morale of those who keep the U.S. safe. Donald Trump said he has “no doubt” that waterboarding works and claimed we can’t worry about waterboarding when terrorist are “chopping off other peoples’ heads.” Marco Rubio and Ben Carson have refused to say which interrogation methods (if any) would be off limits in their administration, while Jeb Bush refused to rule out repealing Obama’s 2009 executive order that prohibits waterboarding.

This ought to be an issue we can all agree about: that the United States rejects torture, waterboarding is torture, and it will not be used again. Some take a relativistic approach. Donald Trump argues that “when you see the other side chopping off heads, waterboarding doesn't sound very severe.” ISIS is a ghoulish, hideous group—like something out of a nightmare. They should not be a standard we refer to in judging our own conduct. In a 1944 decision involving sleep deprivation used in the context of domestic law enforcement, the Supreme Court proposed another way to think about torture, saying  “There have been, and are now, certain foreign nations with governments . . . which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will no[t] have that kind of government.”

That is simple, direct language, and it still applies today in the context of waterboarding either terrorists or suspected terrorists. As Sen. McCain has suggested, whether to torture should not be a complicated question. Other governments, or terrorist organizations, may brutally torture their captives. The United States should categorically reject torture. It is shocking that this is even a matter of debate, and that it is necessary to write these words, but recent history tells us otherwise. It ought to be a simple matter for presidential candidates to reject the use of torture. The fact that some do not tells us we cannot be sure torture will not be done again.