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December 18, 2014

How to Rebuild a Durable Consensus against Torture in the United States

The United States’ use of torture and cruel, inhuman, or degrading treatment in the so-called ‘enhanced interrogation program’ after the 9/11 terrorist attacks was misguided and counterproductive. It violated domestic and international law, compromised the United States’ global commitment to human rights, undermined counterterrorism efforts, bolstered the recruiting efforts of terrorist groups, and provided little—if any—significant intelligence that was necessary to disrupt terrorist plots. For these reasons, President Obama signed an executive order on his second day in office in 2009 ending the use of torture and other cruel, inhuman, or degrading interrogation techniques. While this step ended the program of abusive interrogations, if the government does not put additional legislative and administrative safeguards in place, the United States could return to the use of official cruelty.

Existing criminal statutes, both state and federal, prohibit the use of torture: 18 U.S.C. § 2340A specifically prohibits torture outside the United States; 18 U.S.C. § 2441, the War Crimes Act, prohibits war crimes including torture; and acts of torture domestically may fall under federal or state laws prohibiting battery, assault, mayhem, or other crimes. Furthermore, the United States is a party to the Convention Against Torture, the International Covenant on Civil and Political Rights, and the Geneva Conventions, all of which also prohibit torture and acts of official cruelty.

However, though these laws were in place after the 9/11 attacks, lawyers in the White House, Department of Justice, Department of Defense, and CIA were able to skirt them to advise that so-called ‘enhanced interrogation techniques’ were legal, and allow policymakers to authorize their use. Many of these techniques were even reauthorized after passage of the Detainee Treatment Act in 2005, which prohibited abuse short of torture that rose to the level of cruel, inhuman, or degrading treatment. If a future president were to rescind the anti-torture executive order—as candidate Mitt Romney’s national security advisers recommended during the 2012 campaign—there would be no clear federal statutory barrier to prevent a reauthorization of torture or other forms of abusive treatment.

Moreover, proponents of enhanced interrogation techniques (‘EITs’) continue to argue, incorrectly, that the techniques are safe, lawful, and effective—and that they have played a pivotal role in counterterrorism successes such as locating Osama Bin Laden. Fictional but influential TV shows and movies such as “24” and “Zero Dark Thirty” further reinforce this flawed view. Unsurprisingly, polls show that a majority of Americans continue to favor the use of ‘harsh’ interrogation methods for national security purposes.

The Senate Select Committee on Intelligence’s (SSCI) study on the CIA’s use of abusive interrogation techniques after 9/11, which was released in December 2014, demonstrated just how far the official use and justification of torture can go. Not only did the CIA use techniques on detainees that were much more egregious than those authorized, but it also systematically misled the White House, Congress, the Department of Justice, the National Security Council, and the American people on their use and effectiveness. The duration and frequency with which detainees were subject to techniques like waterboarding, stress positions, and sleep deprivation were much more extreme than previously thought, and detainees were also subject to procedures like rectal rehydration—inserting oversized tubes in detainees’ anuses—which the CIA claims was medically necessary but which doctors have said has no medical benefit.

Furthermore, there is no evidence that the CIA gained useful information because of these techniques—the CIA often subjected detainees who had been cooperating with normal questioning to torture, causing them to stop providing reliable information, or attributed information gained from rapport-building techniques to the use of EITs. Since the report’s release, many seasoned interrogators and military leaders have stepped forward to say that information gained during torture is not reliable, that detainees will say anything to make the torture stop, and that the use of torture makes the country less safe.

Despite these shocking revelations about the depravity and ineffectiveness of the program, there is a high risk that a future administration could authorize a new abusive and unlawful interrogation program if there is not concrete action from the administration and Congress.

State-sanctioned torture goes against everything the United States stands for as a democracy and as a nation that respects human rights. As retired U.S. Army Brigadier General and Army Intelligence School instructor David Irvine put it, torture is “absolutely anathema to democracy.”

This Blueprint offers recommendations for the Congress and the Obama Administration to solidify the U.S. prohibitions against torture and cruel treatment and help rebuild the United States’ role as a global leader for the worldwide eradication of torture.

Download the Blueprint