One great tragedy of the “look forward-don’t look backward” Obama years was the failure to establish a ban on torture as a binding principle for government officials. More than a decade ago, I brought a lawsuit against Donald Rumsfeld and the chain of command on behalf of British detainees who were abused by the US military at “dark sites” and in Guantanamo Bay.
We argued that torture is a universal norm, binding as a matter of US domestic law as well as in treaty obligations. We wanted to establish once and for all that torture is always wrong and can never legally be implemented. The United States argued that these officials had “qualified immunity,” that is, they were allowed to order torture as long as they believed in good faith that they were acting in accordance with the law and not violating a clearly established Constitutional right. These officials had obtained legal opinions from government lawyers telling them that what they were doing, including waterboarding, was legal.
How could senior government officials reasonably believe that torture was legal? How could the chain of command ignore codes of conduct for military officers that had been codified since the Civil War? How could the Bill of Rights’ hallmark protections of the right to due process and to be free from cruel and unusual punishment be construed to permit torture?
After two trips to the Supreme Court, the DC Circuit held that the right not to be tortured was not clearly established sufficiently that a reasonable official would understand that he was violating such a right. Rather than dealing with whether a reasonable person would understand that the prohibition against torture is universally accepted, the Court instead found that aliens outside the United States had no Constitutional rights and so Rumsfeld et al believed they could do whatever they wanted to non-citizens outside the territorial US. The Supreme Court declined to review the case.
Why does any of this legal history matter? Because the US has a president who believes that torture works and torture is legal. Because we have a nominee for head of the CIA who ran for a time a notorious “black site” in Thailand, where it is admitted that waterboarding took place under her watch. Because Gina Haspel’s own sense of public duty and decency did not preclude her from supporting an order destroying videotape evidence of waterboarding. American judges at the Tokyo trials after the Second World War sentenced Japanese officers to death by hanging for ordering waterboarding, the very thing that occurred at this “black site” in the twenty-first century.
Haspel has now raised her right hand and forsworn torture, just as George Bush insisted the US did not torture, when Haspel was overseeing it and calling it by another name – enhanced interrogation.
Haspel has spoken about the panic and uncertainty and fear of another 9/11 that prompted the CIA to embrace torture as an instrument of official action and speak of what she has learned in intervening years. But if confirmed, she will work for a president who appears to revel in torture and finds it permissible and effective, despite, characteristically, having no data to support his position.
While a 2015 Congressional amendment explicitly extended the provisions of the Army Field Manual, which bans torture beyond the military to other agencies of the US government, this would be no impediment to reinstating torture. Despite her testimony, Trump and Haspel could readily use their expansive view of executive power in national defence to amend the Army Field Manual unilaterally or to issue an executive order reinstating torture by the CIA and to cloak it in secrecy. There remains no effective legal mechanisms for detainees outside the United States to assert a legal or Constitutional right not to be tortured in a US court.
It is, of course, highly troubling that Trump would nominate Haspel to head an agency that has tortured in the past. It is even more troubling that no binding law prevents any head of any agency from ordering foreign detainees from being tortured. What is necessary is for Congress to show its support as a coequal branch to affirm that all detainees have the right not to be tortured and for the Supreme Court to affirm that the right not to be tortured is a Constitutional right that binds US officials— everywhere and always.
This story was originally published in The Independent.