Torture and presidential candidates

Should the United States government bring waterboarding back? The question came up in the recent GOP debate, reigniting a familiar post-9/11 conversation over the use of torture to fight terrorism.  Here are the key legal and policy issues that every candidate or policymaker should understand about waterboarding and other so-called “enhanced interrogation” techniques.

Waterboarding meets the legal definition of torture, and is therefore illegal.  Torture under U.S. and international law means acts that cause severe mental or physical pain or suffering.  There’s no question that waterboarding meets that definition.  With waterboarding, a detainee is immobilized on his back while water is poured over a cloth covering his face, creating the extremely painful sensation of drowning.  Waterboarding is also known to cause bleeding from the ears, severe lung and brain damage, and lasting psychological damage.  That some executive branch lawyers after 9/11 wrote legal opinions arguing that waterboarding is not torture does not change the fact that domestic and international law considers it to be torture.  The United States has actually prosecuted enemy combatants for the war crime of waterboarding American soldiers.

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While most of the attention is focused on waterboarding, other so-called “enhanced interrogation techniques” are also unlawful as torture or other forms of detainee abuse.  Sleep deprivation, for example, can result in lasting physical harm. It was often combined with painful stress positions, forced standing, or placement in cramped confinement, such as coffin-sized boxes.  Detainees were also subjected to sensory deprivation through isolation in complete darkness or constant light, and extended exposure to white noise or loud music. These and other so-called “enhanced interrogation techniques” almost certainly rise to the level of torture, especially when used in combination. They are also prohibited by federal and international law that bans cruel, inhuman, and degrading treatment—unlawful detainee abuse that does not rise to the level of torture.

Congress has repeatedly banned so-called “enhanced interrogation” on a bipartisan basis.  In response to detainee abuse at Abu Ghraib, Congress, with a 90-9 vote in the Senate, prohibited all U.S. government agencies and departments from engaging in cruel, inhuman and degrading treatment, including so-called “enhanced interrogation techniques.”  Just last year—with a 78-21 vote in the Senate that included support from the chairs and ranking members of the Senate armed services, intelligence, homeland security, foreign affairs, and judiciary committees—Congress passed anti-torture legislation sponsored by Sen. John McCainJohn McCainOvernight Defense: Pentagon lifts transgender ban | Navy says Iran broke law by detaining sailors Gingrich, Christie top Trump’s VP list: report Woman pushes Trump to ban Muslims from TSA MORE (R-Ariz.), which limits the intelligence community to only those interrogation techniques allowed under the Army Field Manual (AFM).  (The AFM prohibits waterboarding and other abusive techniques.)  Bipartisan opposition to torture extends back to our founding fathers, and more recently to President Reagan, whose administration signed the United Nations Convention Against Torture.

The military opposes so-called “enhanced interrogation” and other forms of detainee abuse because it could put U.S. service members at risk and undermines our military campaigns.  General David Petraeus wrote to American troops in 2007, “Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary.” Additionally, 31 of our nation’s most respected retired generals and admirals wrote, “[W]e believe it was a grave mistake to depart from [our] values and laws when, after the 9/11 attacks, our government employed against terrorism suspects so-called “enhanced interrogation techniques”—commonly known as torture or other forms of official cruelty.”

Interrogators oppose so-called “enhanced interrogation” because it undermines, rather than enhances, our ability to effectively interrogate terrorism suspects.  In 2014, a group of 25 intelligence and interrogation professionals—including professional interrogators who interrogated top al Qaeda suspects—said: “The application of psychological, emotional, and/or physical pressure can force a victim of torture to say anything just to end the painful experience. The challenge of interrogation is not ‘to make people talk’; instead, it is to obtain precise and credible information. [Torture] will substantially impair an individual’s memory, his psychophysical ability to accurately recall critical details about people, places, plans, or events.”

The facts on waterboarding and other so-called “enhanced interrogation” techniques are clear: they are unlawful, ineffective, and counterproductive.  Candidates and policymakers who seek to revive these techniques should know that, in addition to violating clear federal and international law, they will have to contend with our military, our nation’s top interrogators, and bipartisan majorities in Congress.

Wala is senior counsel for defense and intelligence at Human Rights First.

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