Donald J. Trump ran for president on a platform that included a pledge to bring back the torture technique of waterboarding and “a hell of a lot more.” On the campaign trail, Trump told his supporters: “We have to fight so viciously and violently because we’re dealing with violent people…We have to fight fire with fire…or we are not going to have much of a country left.” Clearly, he was operating on the premise that these techniques work, that the kinds of people subjected to waterboarding and other forms of custodial violence in the “war on terror”—namely, Muslims—deserve it, and that the cancellation of the George W. Bush administration’s torture program by Barack Obama in 2009 was a mistake. The crowds cheering on Trump’s pro-torture rhetoric reflect the way in which popular support for torture has become a litmus test for a brand of hard-eyed patriotism in which the universal principal of human dignity is scorned as a politically correct liberal fiction.
The day after winning the election, Trump listed the resurrection of waterboarding as one of his top five policy priorities. In a late November 2016 interview with The New York Times, he reported a conversation he had with his choice for secretary of defense, Gen. James Mattis. According to Trump, Gen. Mattis found it [waterboarding] to be…much less important than I thought he would say. I thought he would say—you know he’s known as Mad Dog Mattis, right? Mad Dog for a reason. I thought he’d say “It’s phenomenal, don’t lose it.” He actually said, “No, give me some cigarettes and some drinks, and we’ll do better.” But then Trump added, “I’m not saying it changed my mind.”
In that Times interview, Trump said something else about waterboarding—which functions rhetorically as a stand-in for torture more broadly. “If it’s so important to the American people, I would go for it. I would be guided by that.” This statement reveals at least two features of Trump’s approach to power, which he now exercises as president. First, he has cultivated a form of populist appeal—which some refer to as Trumpism—that does not just nourish popular prejudices and ignorance but relies on and elevates them as a justification for some of his policies. If the people want torture, then he will give it to them. Second, by saying that he would be guided by popular sentiment on this matter, he is implying that he would not be guided by the law, which categorically prohibits torture. Nor would he be influenced by expert opinion or the abundant evidence that torture is ineffective in producing accurate “actionable intelligence,” as the Senate Select Committee on Intelligence concluded in its report on the CIA program. Indeed, President Trump appears to be either uninformed or indifferent to the fact that the post-September 11, 2001 torture program was strategically disastrous for US national security interests.
Why would President Trump and the people to whom he appeals want to resurrect waterboarding? This desire and possibility are suggestive of how torture haunts US politics today. Desire for waterboarding denotes public attitudes that have shifted toward a pro-torture position in recent years, and the reasons for that shift. The possibility of resurrecting waterboarding reflects changes in the understanding and exercise of executive power, and reinterpretations of the law to rationalize, excuse or immunize strategies and practices that deviate from international norms and even from bedrock constitutional norms. Resurrection suggests something that came and went but threatens to return, what might be called the afterlives of torture. But to set up the “after” in “afterlives,” it helps to begin with a chronology of events relevant to the US history of torture in the context of war and conflict. This excludes torture within the domestic national context—from slavery to mass incarceration.
Torture in the Context of War and Conflict
By the turn of the twentieth century, torture was prohibited by law in many countries and widely regarded as morally unacceptable—even before the major developments in international law following the end of World War II. Yet the use of torture spiked around the globe during the twentieth century. Why? The answer relates to the rise of the national security state and the prevalence of unconventional or asymmetric wars pitting states against non-state groups. Torturing people for information or punishment was common in anti-colonial wars across the global south, and in civil wars pitting repressive states against rebellious or ideologically suspect domestic groups.
Indeed, the United States entered the twentieth century engaged in an asymmetric war in the Philippines, during which US soldiers were documented employing waterboarding. One US major was suspended and fined for using “the water cure,” as it was then described, but President Theodore Roosevelt defended the practice in a 1902 letter in which he wrote, “Nobody was seriously damaged.” At the Tokyo Tribunal following World War II, the United States charged a Japanese officer with war crimes for waterboarding a US civilian. He was sentenced to fifteen years of hard labor. During the Vietnam War, The Washington Post published a front-page photo of US soldiers waterboarding a North Vietnamese soldier in December 1968. The photo prompted an Army investigation that led to the court martial of a soldier. These three events signal official recognition that waterboarding specifically, and torture more generally, were not only unacceptable but criminal.
But there is another history of torture, one that begins with the Korean War—the conflict that ushered in the Cold War era. An American soldier was captured four days after the start of US involvement, and two days later he delivered a radio speech in which he espoused North Korean propaganda. The speed of his indoctrination was alarming to US officials, and this alarm was heightened by the fact that thousands of other American prisoners of war were “broken” in captivity, often at similarly hasty interludes. Such unprecedented behavior among POWs seemed to indicate that the Communists had developed highly effective and fast-working techniques that could be applied successfully to “brainwash” Americans. After the war, it was estimated that one out of every ten of the 4,428 American POWs had “collaborated with the enemy,” of whom approximately thirteen percent were deemed “guilty of serious collaboration.” What made these rapid breakdowns so baffling was that the treatment to which POWs were subjected did not look like conventional torture. Indeed, US officials acknowledged that physical torture of POWs was rare. The core methods of the perplexingly successful process of breaking people involved a combination of surveillance, protracted isolation, physical deprivation and exhaustion, psychological humiliation and coercion and endless demands for autobiographical minutiae.
The US military took a lesson from the Korean War and in 1955 established a program titled Survival, Evasion, Resistance and Escape (SERE). The goal of SERE was to train elite Air Force units to withstand abusive practices, including waterboarding, in the event that they were captured by enemies who did not abide by the 1949 Geneva Conventions that prohibit torture and cruel treatment. This anti-torture training program was extended to the other three branches of the military during the Vietnam War. After the attacks of September 11, 2001, these SERE training techniques were “re-engineered” for the Bush administration’s torture program.
The CIA took a different lesson from the Korean War. In 1953, the Agency began investing in mind control research under the MK-ULTRA program. The earliest phase involved experiments in hypnosis, electroshock and hallucinogenic drugs and evolved into experiments in psychological torture that adapted elements of Communist models. The CIA’s secret program soon became an applied “science” in the Cold War. The laboratories included interrogation centers in various hot wars where the United States intervened directly and locales where the United States supported or colluded with right-wing regimes.
In 1963, the CIA, which operated under the code name Kubark, produced a manual titled “Kubark Counterintelligence Interrogation” to guide agents and allies in the art of extracting information from so-called resistant sources. In Vietnam, these techniques were field tested in the CIA’s Phoenix program, which combined psychological torture with brutal interrogations, human experimentation and extrajudicial executions. The CIA trained more than 85,000 South Vietnamese police, who operated a network of sites across the country where more than 26,000 prisoners were either tortured to death or summarily executed after interrogation.
The Phoenix program was an intelligence gathering failure, and the United States lost the Vietnam War. Nevertheless, the model was transported to Latin America later in the 1960s through Project X, a secret program to train the security forces of US-allied military regimes and dictatorships. The Kubark manual techniques were incorporated into the curriculum of the School of the Americas—a military training and ideology maintenance institution catering to US allies in the Western Hemisphere. In the context of the Cold War-era war on communism, as Alfred McCoy and others have argued, the United States was a major force in propagating torture worldwide.
In the mid-1980s, CIA activities became the subject of congressional investigations into US-supported atrocities in Central America. In 1997, the original Kubark manual and one surviving later edition became public as a result of Freedom of Information Act litigation by The Baltimore Sun. By that time, the Cold War had ended and the CIA’s main methods of intelligence gathering had shifted from human intelligence (HUMINT) to electronic signals intelligence (SIGNIT). The terrorist attacks of September 11, 2001, however, revealed that the lack of human intelligence about al-Qaeda was a monumental weakness, and acquiring it became a driving imperative for the first few years of the war on terror.
Torture and the War on Terror
Five days after the attacks of September 11, 2001, President Bush signed a secret memorandum that served to paramilitarize the CIA with “kill or capture” authority to establish a secret detention and interrogation operation overseas. The Clinton-era rendition program, which involved transfer of captured terror suspects to third countries for trial, was revamped as a program called “extraordinary rendition” to permit the CIA to kidnap people from foreign countries and disappear them into black sites (secret prisons) where they could be held incommunicado as so-called ghost detainees, or transferred extra-legally to the security services of other states for interrogation.
In the division of interrogational labor between the military and the CIA, the latter was vested with primary responsibility for high value detainees (HVD)—people assumed to be terrorist leaders or planners of the September 11, 2001 attacks, or to have knowledge about terrorist operations and plots. On March 28, 2002, the first HVD, Abu Zubaydah, was captured in Pakistan and transported to a black site in Thailand—the first of several where he was detained over his years in CIA custody. The escalating harshness of Abu Zubaydah’s treatment was due to two factors. First, top officials assumed, incorrectly, that he was a major figure in al-Qaeda (he was not even a member at the time of the September 11, 2001 attacks) and demanded actionable intelligence from him. Second, the CIA hired two psychologist contractors, James Mitchell and Bruce Jessen, to run the HVD program, despite neither having relevant interrogation experience or expert knowledge about terrorism. Their prior experience had been with the SERE program, and thus their hiring to run the HVD program is how the re-engineering process began. The brutal and dehumanizing methods authorized for Abu Zubaydah, which included waterboarding him eighty-three times and placing him in a coffin-like “confinement box,” set the stage for the CIA’s new torture program designed to create and exploit conditions of “disability, disorientation and dread.” The guiding theory, if one can call it that, was derived from experiments on dogs and aimed at producing “learned helplessness.” This approach was applied to people held captive by the CIA on the presumption that once they were broken, they would reveal a bounty of actionable intelligence. In this sense, the CIA’s torture program was another chapter in the history of government-supported human experimentation.
By mid-summer 2002, some CIA agents were growing anxious about their vulnerability to future prosecution under federal anti-torture laws. In response, lawyers in the Justice Department’s Office of Legal Counsel (OLC) produced two memos dated August 1, 2002. One memo narrowed the definition of torture to exclude anything but the most extreme forms of physical pain and prolonged mental suffering; the other memo provided legal cover for the tactics already in use, including waterboarding. The memos also articulated a theory of presidential power, termed the “unitary executive thesis,” which was already functioning as a guiding principle for the Bush administration’s war on terror. This thesis asserts that the president, as commander-in-chief, cannot be fettered by any laws or subject to separation-of-power oversight in his pursuit of national security. The unitary executive thesis was unabashedly hyper-sovereigntist in conception and imperial in intention. The thesis also could be interpreted as an attempt to return to an era before the major reforms and developments of international law after World War II.
Although these OLC memos were written for the CIA, the White House forwarded them to the Pentagon. In December 2002, Secretary of Defense Donald Rumsfeld authorized a three course menu of reverse engineered SERE tactics for use on detainees held at Guantánamo Bay. Top legal officers of all four branches of the military protested, but they were ignored by the civilian leadership. The permissive approach to torture authorized for the CIA spread to the military in Guantánamo and subsequently migrated to Iraq in 2003.
Fighting over the Torture Program
Several events served to force the military out of the torture program. The first was the April 2004 publication of photos from the Abu Ghraib prison of naked Iraqi prisoners being humiliated and assaulted by US soldiers. The photos created a scandal of global proportions. Another key turning point was instigated by Sen. John McCain, himself a torture survivor from the Vietnam War. In 2005, he pushed through legislation known as the McCain Amendment to re-prohibit tactics that violated Geneva Convention rules. McCain wanted to include the CIA as well, but Vice President Dick Cheney—the top intellectual author of the torture program—lobbied the Republican-dominated Congress to incorporate a “CIA exception” to the torture ban, which they did. Another piece of legislation, the 2005 Detainee Treatment Act (DTA), further confirmed the prohibition of torture by the military, but also prohibited any Guantánamo prisoners from ever challenging their detention or treatment in US courts. When President Bush signed the DTA into law he also signed a statement that he would not necessarily regard himself as being bound by the ban. One of the people pushing that 2005 signing statement was Neil Gorusch, at the time a top Justice Department official and now the newest member of the Supreme Court.
The beginning of the end of the CIA’s torture program could be dated November 2005, when The Washington Post reported that the Agency engaged in kidnappings and ran black sites in Europe (subsequently revealed by Human Rights Watch to be in Poland, Romania and Lithuania). A more decisive blow was leveled by the Supreme Court in June 2006. In Hamdan v. Rumsfeld the Court ruled that Common Article 3 of the Geneva Conventions—the so-called humanitarian baseline—applies to all people in US custody. At a press conference in September, President Bush derided the decision and complained about the vagueness of Common Article 3’s prohibition on “outrages on personal dignity,” while claiming that enhanced and alternative interrogation techniques (preferred euphemisms for torture) had been effective in keeping Americans safe. Nevertheless, the black sites were emptied and fourteen HVDs were relocated to Guantánamo, including Khalid Sheikh Mohammed, alleged mastermind of the September 11, 2001 attacks, who had been waterboarded 183 times.
In October 2006, Congress passed and President Bush signed the Military Commissions Act (MCA), which permitted the Guantánamo military commissions to use confessions and other evidence elicited by coercive means. Another feature of the 2006 MCA was the provision of ex post facto immunity for any war crimes committed, abetted or ordered by US officials since 1997, the year after Congress passed the War Crimes Act. According to national security law expert Scott Horton, the 2006 MCA is “a piece of legislation that will stand in history alongside the Alien and Sedition Acts and the Fugitive Slave Act as a reminder of the kind of constitutional vandalism that Congress is capable of when it really tries.”
In 2006, the Council of Europe reported that 100 people had been kidnapped on the continent. The European Parliament’s 2007 investigative report exposed extensive collusion by some European security services with the CIA’s extraordinary rendition program. In 2005, an Italian court issued indictments for twenty-three CIA agents (along with four Italians) who had kidnapped Hassan Mustafa Osama Nasr (aka Abu Omar) in Milan in February 2003 and transported him to Egypt where he was brutally tortured. In 2007, a German court issued arrest warrants for thirteen CIA agents involved in the December 2003 kidnapping of Khaled El-Masri, a German citizen, from Macedonia. El-Masri was transported to Afghanistan where he was tortured and held incommunicado for months before being secretly dumped without papers or money in a remote spot in Albania. The German case was ultimately derailed as a result of political pressure.
The Afterlives of Torture
Although the CIA’s torture program stopped while President Bush was still in office, it was canceled decisively in January 2009 when President Barack Obama signed an executive order on his second day in office. It is at this juncture that the “afterlives of torture” becomes relevant. The famously secretive Cheney came out of the shadows to mount a public campaign deriding President Obama’s cancellation order as evidence that the new president was “soft on terror.” Cheney, who described waterboarding as “a dunk in the water” and its use “a no-brainer” for him, saw the repudiation of torture as a reversal to the inroads he and his ideological allies had made in building up an imperial presidency unfettered by law. He asserted repeatedly from the bully pulpit of Fox News and various right-wing think tanks that enhanced interrogation techniques had been used only as a last resort—a flagrant falsehood—and had been amazingly effective—also flagrantly false. Other right-wing politicians and pundits followed Cheney’s lead and public support for torture, which had been increasing slowly since 2004, tipped over the 50 percent mark after the program was canceled. Among Republicans, support lurched upward, indicating that partisan adherents take their cues on such matters from political and media elites.
In this afterlives era, American pro-torture attitudes can be divided into two general categories: One category, exemplified by Cheney and other champions of the unitary executive thesis, is the quasi-intellectual project to legalize the illegal—for example, denying that waterboarding is torture when Americans do it, and even if it is, to assert that the US government’s pursuit of national security should not be constrained by international law. The other category, which President Trump exemplifies, is the aggressively anti-intellectual position characterized by ignorance about torture and the law, and indifference to the principal of human dignity. According to Darius Rejali, who has done extensive research on public attitudes about torture: We discovered that, when it comes to torture, people appear to be driven more by social cues, superstition, resentment and indecision than by philosophy, morality or rational outcomes…In…our controlled survey experiments, so far we have found that respondents who favor torture don’t care whether it produces a positive or negative security outcome.
To say that torture haunts US politics like a ghost is to emphasize that torture still exists but is hidden, repressed, denied and lied about. Avery Gordon’s concept of haunting in Ghostly Mattersis helpful in illustrating this idea. As she explains: [H]aunting is one way in which abusive systems of power make themselves known and their impacts felt in everyday life, especially when they are supposedly over and done with…or when their oppressive nature is denied…Haunting raises specters, and it alters the experience of being in time, the way we separate the past, the present, and the future. These specters or ghosts appear when the trouble they represent and symptomize is no longer being contained or repressed or blocked from view.
Many such specters haunt US politics. When President Obama took the decision not to prosecute those responsible for the torture program, he rationalized this refusal as a form of bipartisan restorative justice, telling the nation that it was time to look forward, not backward. Yet his move was a “ghostly matter” in Gordon’s sense because the existence of the torture program was not negated by its official cancellation. Likewise, the torture memos—although most had been withdrawn or canceled—were key to President Obama’s rationalization that state agents who abetted or engaged in torture had acted in good faith, thus giving the memos their intended “golden shield” power. He pledged in an executive order signed in January 2009 to close Guantánamo within one year, but by May of that year he was already walking back that pledge. That October he signed a revised Military Commissions Act that, while tightening the evidentiary rules on coerced confessions, did nothing to withdraw the ex post facto immunity for war crimes clause in the 2006 version.
Moreover, the Obama administration relied on the Bush administration’s thesis for executive power and territorially boundless war to justify the drone program, which supplanted the interrogation and detention program to become the strategic cornerstone of his administration’s counterterrorism warfare model. Drone warfare and extrajudicial executions rely on the same contra-legal rationales that the United States can pursue its national security interests globally in a manner unconstrained by international law.
Secrecy, Unaccountability, Lies
There are three main reasons to speak about the afterlives of torture haunting US politics today. The first reason is secrecy. Although the CIA program was canceled, information about it remains classified, including all but a heavily redacted executive summary of the SSCI’s authoritative report. Classification of information turns it into subjugated knowledge, hidden away but not gone. Some people know it exists, but others do not believe what they cannot see. Because the SSCI report contains the truth of that secret history, CIA defenders and pro-torture enthusiasts in Congress attempted to have every copy of that report destroyed. They failed, but only because President Obama, during his last days in office, ordered that his copy be preserved in the presidential archives. Yet he also ordered that it remain classified and access be restricted for twelve years, the maximum time allowed by law.
The issue of secrecy includes the people who embody the knowledge: the individuals who were tortured by the CIA, some of whom remain imprisoned at Guantánamo, who are living ghosts. Their memories of torture were classified as state secrets by the Obama administration. They are not permitted to communicate their experiences to anyone who does not have top security clearance and some direct, authorized relation to the military commissions. Even those who have such clearance, such as their lawyers, are gagged from ever speaking about it publicly. The military commission trials for those accused of responsibility for the September 11, 2001 attacks have dragged on for years in the pre-trial phase because the government has committed itself to preserving the CIA’s secrets. Consequently, every witness and every piece of evidence pertinent to the interrogation and detention of those on trial must be litigated, requiring judges to figure out how to reconcile the government’s will to secrecy with an appearance of due process. More broadly, this regime of secrecy creates opportunities to advance the false narrative in the public domain that torture worked, that it “kept Americans safe,” and that its cancellation has diminished our capacity to fight terror.
The second way in which the afterlives of torture haunt US politics today is the lack of accountability. Torture is a federal crime and a gross crime under international law. According to Kathryn Sikkink, who has done comparative transnational research on the prosecution of officials responsible for human rights violations, the Latin American region is a global leader in what she terms the justice cascade because dozens of former leaders have been put on trial and convicted. She found that the effects of prosecutions include lower levels of repression and better human rights records in those countries. However, the real test, as she and others have noted, is whether international law and the norms associated with retributive justice for gross crimes does, or even could, influence a powerful state like the United States. None of the US officials responsible for the torture program have been held accountable. And because of the power and influence of the United States, this lack of accountability undermines the power of international law and the strength of the anti-torture norm globally. Moreover, letting officials of past administrations get away with torture does nothing to deter the possibility of a future administration attempting to do it again, and this is where the possibility of resurrection of torture in the future has a disrupting effect on the present.
The third way in which the afterlives of torture haunt US politics today is that the failure to acknowledge the truth has a distorting effect on reality. Although Obama canceled the CIA’s torture program in 2009, his administration made every possible effort to thwart any justice for victims in domestic or foreign courts, and most of those efforts were successful. It was not until August 2014 that he officially acknowledged torture not just as a policy he had canceled but as the intentional actions of people. But even this acknowledgment was done in the most toothless and anodyne way, with President Obama saying, “We did a whole lot of things that were right [after the attacks of September 11, 2001]. But we tortured some folks.” Thus, while Obama’s record is not pro-torture per se, neither is it boldly anti-torture. He did not use his power to kill the ghost through any one of the three courses available to him: declassification, accountability or acknowledgement. The secrets remain secret, and the lies and fabrications about the efficacy of torture or its compatibility with the law continue to be bought and sold in public discourse.
In the United States, not only has there been no accountability, but some people responsible for the torture program continue to work in the government and have been promoted to even higher levels of authority. One example is Trump’s appointment of Gina Haspel as deputy director of the CIA. On March 13, 2018, Trump appointed her to become the new director. Haspel was directly involved in the black site torture program and shared responsibility for the order to destroy ninety-one videotapes of several prisoners being waterboarded and tortured by other means. The pro-torture camp sees her elevation within the CIA as a vindication of, if not the torture program itself, at least of its legitimacy in history.
There have been several recent positive developments in the realm of accountability, however: The two psychologist contractors who were hired and paid eighty-one million dollars to design and run the CIA torture program, James Mitchell and Bruce Jessen, were sued in the state of Washington by several victims. The court not only allowed this case to proceed, which in itself was a novel break from the trend of accepting the government’s states’ secrets arguments to shut cases down, but also ruled that several top officials from the CIA could be called as witnesses to testify. The case ended when Mitchell and Jessen settled with the plaintiffs, thus conceding at least some degree of culpability for this gross crime. And in October 2016, the Fourth Circuit Court of Appeals reinstated a previously dismissed lawsuit by victims of torture at Abu Ghraib against the private contractor firm CACI Premier Technology. In a concurring ruling, one judge emphasized, “It is beyond the power of even the president to declare [torture] lawful.”
Killing the Ghost of Torture
We are living in an era in which, when it comes to torture, truth and justice are elusive. And so torture haunts our politics. Like a ghost that threatens to take over the house, President Trump elicits big cheers when he tells crowds he wants to bring back the waterboard. Whether he or a future president would ever be able to resurrect such a program remains an open question. Although military and CIA officials have declared that they would not endorse or institute a return to torture, public opinion has swung the other way.
This growing public desire for torture underlines the importance of civic education about the lessons of history. Civic education begins with a battle for narratives with the goal to inform and contribute to a greater public understanding about what is wrong with torture. Civic education also includes empowering people to aggressively assail the vocal pro-torture constituency. This is where students and scholars can play an important role. It is incumbent upon those who care about these issues to produce empirically solid and analytically persuasive arguments against torture—and against those who support it—because this is a way of demonstrating a respect for democracy and the rule of law in the United States, and for human rights and humanitarian principles on a global scale. Given the outcome of the 2016 election and the victory of an ardently pro-torture candidate, civic education about torture and organizing against it may very well become the twenty-first century version of the abolition movement.
[This piece originally appeared in Middle East Report 283.]