This week as the Trump administration began to deliver on its promises to overturn settled practices in Washington, it was hard to decide which of its proposed changes was the most disruptive. It reinstated and expanded a Reagan-era ban on federal funding for international family planning groups that perform abortions or provide abortion information; it reopened the approval process for the Keystone XL pipeline and moved to expedite construction of the Dakota Access pipeline; the President himself proudly announced that the construction of a border wall with Mexico would proceed and he flirted with the creation of a Muslim registry and a “major” investigation into illegal voting – even though claims of substantial voter fraud have been widely refuted. Somewhere within this dizzying mix of initiatives Trump also suggested that he might revisit the question of torture. He told ABC’s David Muir that the US was not “on an even playing field” with the Islamic State and that it was time to “fight fire with fire.” President Trump said he wanted to “do everything within the bounds of what you’re allowed to do legally” and that conversations with intelligence officials had convinced him that torture “absolutely” works.
In the most basic sense, President Trump is unquestionably correct. If you torture someone they will give you answers, often very specific ones, as to what they intended to do, with whom they collaborated, what they have hidden, and where. Almost invariably, however, these answers turn out to be nonsense: the product of terrified people who will say anything to stop the pain to which they have been subjected. From a purely utilitarian point of view, torture does not produce results where traditional interrogation has failed – at least not if a 6,000-page report by the US Senate intelligence committee reviewing America’s appalling reversion to torture in the post 9/11 era is to be believed. In the hunt for Osama bin Laden for instance – despite heated claims to the contrary – none of the key intelligence was acquired by torture.
During the Bush years, besides the torture used at Abu Ghraib and Guantanamo Bay, the US had a troubling record of outsourcing torture to countries such as Egypt, Jordan, Morocco and Singapore. What may be even more disturbing, with hindsight, was the willingness of senior members of the administration to redefine clear violations of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as “enhanced interrogation techniques” – a Swiftian term that permitted repeated near drownings (“waterboarding”), the prolonged use of stress positions, physical violence and a variety of dark threats. In a notorious 2002 memo, Assistant Attorney General Jay Bybee advised the Office of Legal Counsel that the threshold for torture could be moved to the “level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions.” The memo was officially repudiated, but portions of it were reproduced in a report for a Pentagon Working Group on torture the following year, and helped pave the way for the revival of torture within the US military.
Ultimately, legal arguments can only go so far in the debate on torture because legislation can always be revised. When the second Bush administration sought to reopen the debate on torture in America, the legal scholar Conor Gearty, former Director of the Centre for the Study of Human Rights at the London School of Economics, said it was “like reacting to a series of police killings with proposals to reform the law on homicide so as to sanction officially approved pre-trial executions.” Gearty’s point is well made, for what matters more than the law – which can be tailored to suit new governments – is morality that informs the law. The 1984 UN Convention on torture ulimately appeals to our common humanity and says that some questions are too important to be relitigated by anything so transient as a national government. The infliction of cruel, inhuman and degrading punishments is – by definition – wrong. It can never be justified morally, even though there are always plenty of legal scholars willing to explore the “bounds of what you’re allowed to do legally” and push them a little further out.
It is shocking enough that the United States was able to reopen the question of torture during the Bush years, but it is truly horrifying to imagine what would result if the casual attitudes expressed by the new President ever become part of the political or cultural mainstream. Wrong-footed by the US President’s remarks, visiting British Prime Minister Theresa May told a reporter that “We condemn torture and that won’t change” – but recent history shows that such principled statements must be backed up by action if they are to mean anything. If it is not self-evident to President Trump that torture is strategically foolish and morally reprehensible then his allies should make it clear that it is.
