Torture Needs to Be Illegal

Could the clash over the Senate Intelligence Committee’s Study on the CIA’s Detention and Interrogation Program have gone any more dismally? The fracas deepened divisions and reopened old wounds without advancing one whit the national debate over the use of torture as an instrument against terrorism. With Democratic senators demanding CIA Director John Brennan’s resignation and Republicans lawmakers and former CIA chiefs decrying the tome as a partisan witch-hunt against a program that, they contend, saved American lives, a national consensus on the subject appears more elusive than ever.

The damage, however, was not just to the public discourse: It threatens to significantly weaken our long-term counterterrorism efforts and, by extension, our national security. That’s because, despite the public image propagated by Zero Dark Thirty and other depictions, counterterrorism is not just about stealthy helicopter raids and turning hardened militants into intelligence sources.

Indeed, because in policy circles it is widely accepted that we “cannot shoot our way out of” the terrorism challenge, reforms in societies that produce large numbers of jihadists has become a central goal of American policy. At the forefront of this effort to blunt drivers of radicalization has been the work to press other countries to abandon the repressive practices such as indefinite incarceration, unrestricted police authorities and torture.

Although debate about the factors that cause violent extremism continues, no one disputes that jihadism was born in grim prisons and torture chambers in such places as Gamal Abdel Nasser’s Egypt and Hafez al-Assad’s Syria and that many of its soldiers joined up because they were abused by the governments in their own nations. Many more of its supporters are motivated by solidarity with those who have been abused and by their hatred of the repressive “apostate” regimes that carried out these acts.

Thus, it is not just that U.S. hypocrisy has been on display in the last week, undermining this broad-based effort. More damagingly, we have not persuaded partners around the world that this episode was an aberration borne of extreme circumstances that is now in our past. To do that, the United States must quickly legislate clear prohibitions on the “enhanced interrogation techniques” that have caused so much controversy.

Because U.S. efforts to get countries out of the business of abusing human rights involve diplomacy, training of foreign partners and financial support , not Special Ops raids or cloak and dagger work, they get little attention. For most journalists, these are MEGO (Mine Eyes Glazeth Over) stories. But these far-reaching initiatives involve not just the State Department but also Defense Department, the CIA and others, and their goals are central to much of what the U.S. government does in regions beset by terrorism.

A few examples: U.S. efforts to build counterterrorism capacity with partner countries routinely integrate human rights training. When the State Department funds an Anti-Terrorism Assistance program, it regularly incorporates materials on human rights compliance in its courses for the other country’s forces.

Whether the U.S. is training civilian forces or military ones, “Leahy Vetting,” an audit of the human rights record of units to be trained named for its architect Vermont Senator Patrick Leahy, is necessary. Frequently, the U.S. withholds funding for these programs when a partner country refuses to clean up its act, as has been the case for example in Nigeria, where that country’s refusal to restrain its often brutal military has led many Muslims in the north to join or support Boko Haram. “Leahy issues” may not always lead countries to comply rapidly with U.S. demands, but they create a framework and incentives for going forward.

Promoting a rule-of-law approach has led to dramatic results in some countries. In Indonesia, for example, U.S. and Australian efforts to train high-end police coupled with intensive legal reforms has produced remarkable improvements. A country that little over a decade ago quaked from the terrorist attacks has become vastly more competent at thwarted attacks, investigating those that do occur and conducting terrorism trials for those apprehended. Consequently, Indonesia has had sustained, broad-based success its jihadist enemies.

During the Obama administration, the effort to move partners toward rule-of-law policies has deepened substantially. In June, the International Institute for Justice opened its doors in Valetta, Malta, to provide human-rights compliant police and legal training for countries interested in more effective counterterrorism policies. This new academy was the result of an initiative by the U.S.-backed Global Counterterrorism Forum, which has sought broader adherence to rule-of-law practices since the U.S. led the effort to establish it in 2011.

All this work will be put at risk if America’s position on torture does not move beyond where it is now. With retired top CIA officials insisting that enhanced interrogations worked—and by implication were appropriate—and former Vice President Cheney repeating incessantly that he would authorize again such programs, other countries may wonder if America will practice what it preaches. (The fact that torture was outlawed because of its moral repugnance, not its uncertain efficacy, seems to have been lost in the discussion; by making it a central issue, the Senate investigators blundered badly.)

A question mark hangs over the issue of whether the United States will again use the harsh interrogation practices it did from 2002 to 2007. CIA Director John Brennan, with whom I worked closely as coordinator for counterterrorism at the State Department (2009-2012) and who I respect greatly, can likely not imagine a return to the enhanced interrogation techniques of the past. But when he said at his December 11 press conference that he, as an intelligence chief, would “defer to the policymakers in future times when there is going to be the need to be able to ensure that this country stays safe if we face a similar type of crisis,” he reminded us, perhaps unintentionally, that the safeguards against a recurrence are weak.

In truth, the only barrier today is President Obama’s January 2009 Executive Order Ensuring Lawful Interrogations. Of course, executive orders can be rescinded at a moment’s notice, and a successor to President Obama will do as he or she pleases in this area. Yes, the Torture Act and the UN Convention Against Torture criminalize torture, but so long as government lawyers define specific acts as being something other than torture, a White House can do what it wants.

Given humanity’s boundless ability to innovate new ways to inflict pain, there may be no foolproof way to prevent future U.S. governments from employing torture. But an essential step now is to enact legislation specifically banning such practices as waterboarding, “walling,” extreme sleep deprivation and the like. Only that will prevent future presidents from repeating the mistakes of the Bush Administration.

Legislation of this kind is the minimum for restoring U.S. credibility as it seeks to promote human-rights compliant policies. Those who question whether our credibility is frayed should consider the riposte last Friday from the Kenyan leadership after U.S. officials criticized that country’s new counterterrorism law. A statement on the president’s website—the same president who had been indicted by the International Criminal Court—declared, “[O]ur law is better than the American Patriot and Homeland security Acts that give rogue powers to security agencies. In the U.S., FBI and intelligence officers have a carte blanche in the fight against terrorism and biological warfare, but our law has provided checks by courts of law. What is more, Kenya has no Guantanamo Bay!”

New legislation is also critical for maintaining the counterterrorism partnerships we have with others around the world—relationships that are essential for thwarting imminent plots as well as for achieving long-term change. The U.S. does many things to advance its interests that arouse emotions ranging from concern to hatred around the world. These practices, which include the use of drones and aggressive surveillance, are justifiable in my view, but if they are seen as being part of package with torture, America’s ability to sustain them and preserve its partnerships will be undercut.

The Obama administration has sought to avoid partisan warfare over its predecessor’s misdeeds in detention and interrogation. That may be smart politics. But leaving open in the minds of allies and partners around the world that we may torture again is too big a price—for U.S. leadership and for effective counterterrorism policy—for this kind of political benefit.

This piece was originally published by
Politico Magazine