Berkley Center

The spread of populist governments across the world raises renewed questions about the use and justification of torture. Despite the global prohibition against torture, which the 141 countries that have ratified the United Nations Convention Against Torture have pledged to uphold, avowedly pro-torture leaders are openly questioning this global norm. Brazilian President Jair Bolsonaro and Philippine President Rodrigo Duterte have boasted about their support for torture and praised convicted torturers as military heroes. In the United States, President Donald Trump has vowed to reinstate torture, including treatment that would be “a hell of a lot worse than waterboarding,” and insisted that torture works, adding that even “if it doesn’t work, they deserve it anyway, for what they’re doing.”

President Trump has pardoned convicted war criminals and appointed a number of officials who privately authorized or publicly condoned the use of waterboarding and other harsh interrogation techniques. Before his confirmation as CIA director, Mike Pompeo condemned the release of a report by the Senate Select Committee on Intelligence on the CIA’s detention and interrogation program as a threat to national security and insisted the actions taken by intelligence professionals was in full compliance with the law. His successor, Gina Haspel, was directly involved in overseeing the use of torture at U.S. secret prisons in the war on terror and destroying evidence documenting these instances of torture; she noted during the confirmation process “the valuable intelligence collected” but also the “damage to our officers and our standing in the world.” Former Department of Homeland Security Secretary General John Kelly, who oversaw interrogations at Guantánamo, called criticism of detainee treatment “foolishness.” Like General Kelly, who claimed during his confirmation hearings that he would “absolutely” abide by U.S. laws prohibiting torture, Jeff Sessions, when nominated for attorney general also distanced himself from earlier statements praising waterboarding as an effective technique.

In such an environment, is torture likely to become a tolerated means of political repression and control?

In such an environment, is torture likely to become a tolerated means of political repression and control? To answer this question, it is important to consider the ways in which the Bush administration justified its actions in the war on terror. Lawyers within the George W. Bush administration argued that 9/11 had plunged the country into a new kind of war in which it was essential “to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians” which made strict limitations on questioning of enemy prisoners “obsolete.” A broad doctrine of pre-emption was invoked to justify using whatever means necessary to get information that could help stop terrorist acts before they could be carried out. Secret detention facilities were set up outside the United States; suspected terrorists were “rendered” to countries well known for using brutality and torture; and harsh interrogation methods were designed, tested, and implemented in detention facilities in Afghanistan, Guantánamo Bay, and Iraq. 

Guantánamo was a particularly significant choice because the interrogation methods used against detainees there not only reflected the government’s conviction that it had a compelling need to use harsh methods that were tantamount to torture; the decision to transfer alleged terrorists to Guantánamo also reflected the government’s interest in deflecting attention away from its practices. As Karen Greenberg explains in The Least Worst Place: Guantánamo’s First Hundred Days, U.S. officials wanted to avoid oversight by foreign governments, as well as legal jurisdiction that could allow prisoners to claim habeas corpus rights. Although detainees ultimately did file for habeas writs and were granted the right to civilian trials, it initially appeared that the unique status of Guantánamo—under the complete jurisdiction and control of the United States but technically still sovereign territory of Cuba—meant that military and CIA officials would not have to worry about intrusion by U.S. civilian courts. As Philippe Sands put it, Guantánamo was the “legal equivalent to outer space.” 

By detaining and interrogating prisoners in Guantánamo, the Bush administration sought to deny accusations that it was violating laws prohibiting torture.

By detaining and interrogating prisoners in Guantánamo, the Bush administration sought to deny accusations that it was violating laws prohibiting torture. This went hand in hand with claims that interrogation methods, while harsh, did not constitute torture under the extremely narrow definition forwarded by administration lawyers. Mounting criticism of coercive interrogation techniques, especially after the release of photographs of detainees in U.S. custody in the Abu Ghraib prison in Iraq, led to condemnation of a few “bad apples” and denial that such practices were part of a systematic program of interrogation authorized and condoned by top officials. A few policy changes were introduced, but these were limited and only a few low-level troops and staffers were ever held responsible for abuses, while senior civilian and military leaders escaped responsibility. Promises to close the detention facility in Guantánamo went unfulfilled. Such lack of accountability sent a clear signal that torture could be justified—even if it was immoral and likely ineffective, and even though the U.S. failure to respond to terrorism in accordance with rules of just war proved to be counterproductive, actually increasing opposition to the United States.

Although government officials continue to engage in “tortured” efforts to present their actions as legal, statements by populist leaders like Donald Trump raise fundamental questions about the government willingness to comply with international law, including the global prohibition against torture. Some may see this as a welcome end to hypocrisy, arguing that governments will go ahead with policies they deem necessary whether or not these policies are legal. Along these lines, Alan Dershowitz contends that it would be better to acknowledge reality and limit the use of torture by implementing torture warrants. Yet insisting on particular interpretations of the ban on torture carries its own risk. Advocates of harsh interrogation who insist that they are complying with the ban on torture, let alone those who question the need for a ban altogether, fall into a different kind of hypocrisy trap. They will find it increasingly difficult to convince others to abide by the laws that they want to enforce, both domestically and internationally. They will also erode the legitimacy that comes from abiding by rule of law.