State-Sanctioned Torture in the Age of Trump

by Marjorie Cohn, Truthout | News Analysis –

During the presidential campaign, Donald Trump declared he would “immediately” resume waterboarding and would “bring back a hell of a lot worse than waterboarding” because the United States is facing a “barbaric” enemy. He labeled waterboarding a “minor form” of interrogation.

Waterboarding, which involves pouring water into the nose and mouth to make victims feel like they’re drowning, has long been considered torture, which is a war crime under US and international law. Indeed, the United States hung Japanese military leaders for waterboarding as a war crime after World War II.

In late November 2016, Vice President Mike Pence refused to rule out torture in the Trump administration.

Torture Is Always Illegal

What does torture have in common with genocide, slavery and wars of aggression? They are all “jus cogens.” That’s Latin for “higher law” or “compelling law.” This means that under international law, no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a “jus cogens” prohibition.

The United States has always prohibited torture — in our Constitution, laws, executive orders, judicial decisions and treaties. When we ratify a treaty, it becomes part of US law under the Supremacy Clause of the Constitution.

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture,” the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the US ratified, states unequivocally.

Torture is considered a grave breach of the Geneva Conventions, also ratified by the United States. Geneva classifies grave breaches as war crimes.

The US War Crimes Act and 18 USC, sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

And the Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

Torture Doesn’t Work

Trump said he would approve the use of waterboarding “in a heartbeat” because “only a stupid person would say it doesn’t work.” But even “if it doesn’t work,” he added, “they deserve it anyway, for what they’re doing.”

Experts agree that torture does not work. A 2006 study by the National Defense Intelligence College found that traditional, rapport-building interrogation techniques are extremely effective even with the most hardened detainees, but coercive tactics create resistance and resentment.

Interrogators concur that torture is not efficacious to glean intelligence. Glenn L. Carle, who supervised the 2002 interrogation of a high-level detainee for the CIA, told The New York Times that coercive techniques “didn’t provide useful, meaningful, trustworthy information.”

Likewise, Ali Soufan, a former FBI Supervisory Special Agent who conducted several high-profile terrorism interrogations, testified before Congress that harsh interrogation techniques “are ineffective, slow, and unreliable, and as a result harmful to our efforts to defeat al Qaeda.”

Matthew Alexander, a former senior military interrogator who supervised or conducted 1,300 interrogations in Iraq, which led to the capture of several al-Qaeda leaders, echoed Soufan’s sentiments. Alexander said, “I think that without a doubt, torture and interrogation techniques slowed down the hunt for Bin Laden.”

Both Senators John McCain (R-Arizona) and Dianne Feinstein (D-California) said that torture did not lead us to Bin Laden. The United States located Bin Laden with traditional interrogation methods over several years.

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Reprinted with permission from Truthout