Resurrecting the Unholy Trinity: Torture, Rendition, and Indefinite Detention Under Trump
When George W. Bush and Dick Cheney launched their forever wars -- under the banner of a “Global War on Terror” -- they unleashed an unholy trinity of tactics. Torture, rendition, and indefinite detention became the order of the day. After a partial suspension of these policies in the Obama years, they now appear poised for resurrection.
For eight years under President Obama, this country’s forever wars continued, although his administration retired the expression “war on terror,” preferring to describe its war-making more vaguely as an effort to “degrade and destroy” violent jihadists like ISIS. Nevertheless, he made major efforts to suspend Bush-era violations of U.S. and international law, signing executive orders to that effect on the day he took office in 2009. Executive Order 13491, “Ensuring Lawful Interrogations,” closed the CIA’s secret torture centers -- the “black sites” -- and ended permission for the Agency to use what had euphemistically become known as “enhanced interrogation techniques.”
On that same day in 2009, Obama issued Executive Order 13492, designed -- unsuccessfully, as it turned out -- to close the U.S. military prison at GuantÃ¡namo Bay, the site of apparently endless detention without charges or trials. In 2015, Congress reinforced Obama’s first order in a clause for the next year’s National Defense Authorization Act that limited permissible interrogation techniques to those described in the U.S. Army Field Manual section on “human intelligence collector operations.”
All of that already seems like such ancient history, especially as the first hints of the Trump era begin to appear, one in which torture, black sites, extraordinary rendition, and so much more may well come roaring back. Right now, it’s a matter of reading the Trumpian tea leaves. Soon after the November election, Masha Gessen, a Russian Ã©migrÃ©e who has written two books about Vladimir Putin’s regime, gave us some pointers on how to do this. Rule number one: “Believe the autocrat.” When he tells you what he wants to do -- build a wall, deport millions, bring back torture -- “he means what he says.” Is Gessen right? Let’s examine some of those leaves.
It should come as no surprise to anyone who paid minimal attention to the election campaign of 2016 that Donald Trump has a passionate desire to bring back torture. In fact, he campaigned on a platform of committing war crimes of various kinds, occasionally even musing about whether the United States could use nukes against ISIS. He promised to return waterboarding to its rightful place among twenty-first-century U.S. practices and, as he so eloquently put it, “a hell of a lot worse.” There’s no reason, then, to be shocked that he’s been staffing his administration with people who generally feel the same way (Secretary of Defense James “Mad Dog” Mattis being an obvious exception).
The CIA was certainly not the only outfit engaged in torture in the Bush years, but it’s the one whose practices were most thoroughly examined and publicized. Despite his enthusiasm for torture, Trump’s relationship with the Agency has, to say the least, been frosty. Days before his inauguration, he responded to revelations of possible Russian influence on the U.S. election by accusing its operatives of behaving like Nazis, tweeting: “Intelligence agencies should never have allowed this fake news to 'leak' into the public. One last shot at me. Are we living in Nazi Germany?”
He quickly appointed a new director of the CIA (as hasn’t been true of quite a few other positions in his administration). He chose former Congressman Mike Pompeo, whose advice about torture he has also said he would consider seriously. A polite term for Pompeo’s position on the issue might be: ambiguous. During his confirmation hearings, he maintained that he would “absolutely not” reinstate waterboarding or other “enhanced techniques,” even if the president ordered him to. “Moreover,” he added, “I can’t imagine that I would be asked that.”
However, his written replies to the Senate Intelligence Committee told quite a different, far less forthright tale. Specifically, as the British Independentreported, he wrote that if a ban on waterboarding were shown to impede the “gathering of vital intelligence,” he would consider lifting it. He added that he would reopen the question of whether interrogation techniques should be limited to those found in the Army Field Manual. (“If confirmed, I will consult with experts at the Agency and at other organizations in the U.S. government on whether the Army Field Manual uniform application is an impediment to gathering vital intelligence to protect the country.”)
In other words, as the Independent observed, if the law prohibits torture, then Pompeo is prepared to work to alter the law. “If experts believed current law was an impediment to gathering vital intelligence to protect the country," Pompeo wrote to the Senate committee, “I would want to understand such impediments and whether any recommendations were appropriate for changing current law.” Unfortunately for both the president and him, there are laws against torture that neither they nor Congress have the power to change, including the U.N. Convention against Torture, and the Geneva Conventions.
Nor is Mike Pompeo the only Trump nominee touched by the torture taint. Take, for instance, the president’s pick for the Supreme Court. From 2005 to 2006, Neil Gorsuch worked in the Justice Department’s Office of Legal Counsel, the wellspring for John Yoo’s and Jay Bybee’s infamous “torture memos.” Gorsuch also assisted in drafting Bush’s “signing statement” on the 2005 Detainee Treatment Act. That act included an amendment introduced by Senator John McCain prohibiting the torture of detainees. As the White House didn’t want its favorite interrogation methods curtailed, Gorsuch recommended putting down “a marker to the effect that... McCain is best read as essentially codifying existing interrogation policies.” In other words, the future Supreme Court nominee suggested that the McCain amendment would have no real effect, because the administration had never engaged in torture in the first place. This approach was the best strategy, he argued, to “help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment.”
In his brief tenure at the Office of Legal Counsel, Gorsuch provided further aid to the supporters of torture by, for example, working on government litigation to prevent the exposure of further “Darby photos.” These were the shocking pictures from Iraq’s Abu Ghraib prison that came into the possession of U.S. Army Sergeant Joe Darby. He then passed them up the chain of command, which eventually led to the public revelation of the abuses in that U.S.-run torture palace.
Trump’s new attorney general, Jeff Sessions, is also a torture enthusiast. He was one of only nine senators to vote against the 2005 Detainee Treatment Act. The Act limited the military to the use of those interrogation methods found in the Army Field Manual. In 2015, he joined just 20 other senators in opposing an amendment to the next year’s military appropriations bill, which extended the Field Manual rules to all U.S. agencies involved in interrogation, not just the military.
Reviving the Black Sites?
So far, President Trump hasn’t had the best of luck with his executive orders. His two travel bans, meant to keep Muslims from entering the United States, are at present trapped in federal court, but worse may be in the offing.
Trump promised during the campaign to reopen the CIA’s notorious black sites and bring back torture. Shortly after the inauguration, a draft executive order surfaced that was clearly intended to do just that. It rescinded President Obama’s orders 13491 and 13492 and directed the secretary of defense and the attorney general, together with “other senior national security officials,” to review the interrogation policies in the Army Field Manual with a view to making “modifications in, and additions to those, policies.” That would mean an end run around Congress, since it doesn’t take an act of that body to rewrite part of a manual (and so reinstitute torture policy).
It also called on the director of national intelligence, the CIA director, and the attorney general to “recommend to the president whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States and whether such program should include the use of detention facilities operated by the Central Intelligence Agency.” In other words, they were to consider reopening the black sites for another round of “enhanced interrogation techniques.”
As in so many such documents, that draft order included a cover-your-ass clause, in this case suggesting that “no person in the custody of the United States shall at any time be subjected to torture or cruel, inhuman, or degrading treatment or punishment, as proscribed by U.S. law.” As we learned in the Bush years, however, such statements have no real effect because, as in a 2002 memo produced by John Yoo and Jay Bybee, “torture” can be redefined as whatever you need it to be. That memo certified that, to qualify as torture, the pain experienced by a victim would have to be like that usually associated with “serious physical injury, such as organ failure, impairment of bodily function, or even death.” In other words, if he didn't die or at least come close, you didn’t torture him.
After the recent draft executive order on these subjects was leaked to the media and caused a modest to-do, a later version appeared to drop the references to black sites and torture. While no final version has yet emerged, it’s clear enough that the initial impulse behind the order was distinctly Trumpian and should be taken seriously.
As soon as the draft order surfaced in the press in late January, the White House disclaimed all knowledge of it and no version of it appears on current lists of Trump executive actions since taking office. But keep in mind that presidents can issue secret executive orders that the public may never hear about -- unless the news spills out from an administration whose powers of containment so far could be compared to those of a sieve.
DÃ©jÃ Vu, Rendition Edition
Notably, neither of Obama’s Inauguration Day executive orders addressed extraordinary rendition. In fact, this was a weapon he preferred to keep available.
What is extraordinary rendition? Ordinary rendition simply means transferring someone from one legal jurisdiction to another, usually through legal extradition. Rendition becomes “extraordinary” when it happens outside the law, as when a person is sent to a country with which the United States does not have an extradition treaty, or when it is likely (or certain) that the rendered person will be tortured in another country.
In the Bush years, the CIA ran an extraordinary rendition machine, involving the kidnapping of terror suspects (sometimes, as it turned out, quite innocent people) off the streets of global cities as well as in the backlands of the planet, and sending them to those brutal CIA black sites or rendering them to torturing regimes around the world. Rendition continued in a far more limited way during Obama’s presidency. For example, a 2013 Washington Post story described the rendition of three Europeans “with Somali roots” in the tiny African country of Djibouti and of an Eritrean to Nigeria. The article suggested that, in part because of congressional intransigence on closing GuantÃ¡namo and allowing the jailing and trial of suspected terrorists in U.S courts, rendition represented “one of the few alternatives” to the more extreme option of simply killing suspects outright, usually by drone.
Recently, there was news that a Trump associate might have been involved in planning a rendition of his own. Former CIA Director James Woolsey told the Wall Street Journal that, last September, Lieutenant General Michael Flynn discussed arranging an extralegal rendition with the son-in-law of Turkish President Recep Tayyip Erdogan and Turkish Foreign Minister Mevlut Cavusoglu. At the time, he was serving as an adviser to the Trump campaign. He later -- briefly -- served as President Trump’s national security adviser.
The target of this potential rendition? Fethullah Gulen, an Islamic cleric who has lived for decades in the United States. President Erdogan believes that Gulen was behind a 2016 coup attempt against him and has asked the U.S. to extradite him to Turkey. The Obama administration temporized on the subject, insisting on examining the actual evidence of Gulen’s involvement.
Flynn’s foray may have been an instance of potential rendition-for-profit, a plan to benefit one of his consulting clients. At the time, Flynn’s (now-defunct) consulting firm, the Flynn Intel Group, was working for a Dutch corporation, Inovo, with ties to Erdogan. The client reviewed a draft op-ed eventually published in the Hill in which Flynn argued that Gulen should be extradited, because he is a “radical cleric” and Turkey is “our friend.” In addition to lying about his contacts with the Russian ambassador during the election campaign, it turns out that Flynn was probably working as an unregistered foreign agent for Turkish interests at that time.
Mike Pompeo also appears to be bullish on renditions. In his written testimony to the Senate Intelligence Committee, he indicated that under him the CIA would probably continue this practice. When asked how the Agency would avoid sending prisoners to countries known to engage in torture, his reply could have come straight from the Bush-Cheney playbook:
“I understand that assurances provided by other countries have been a valuable tool for ensuring that detainees are treated humanely. In most cases other countries are likely to treat assurances provided to the United States government as an important matter.”
Asking for such assurances has in the past given the U.S. government cover for what was bound to occur in the prisons of countries known for torture. (Just ask Maher Arar rendered to Syria or Binyam Mohammed rendered to Morocco about what happened to them.)
We’ll Always Have GuantÃ¡namo...
“We’ll always have Paris,” Rick reminds Ilsa during their bittersweet goodbye in the classic film Casablanca. Our GuantÃ¡namo lease with Cuba (which reads, "for use as coaling [refueling] or naval stations only, and for no other purpose”) is a permanent one. So it looks like we’ll always have GuantÃ¡namo, with its memories of torture and murder, and its remaining 41 prisoners, undoubtedly stranded there forever.
As it happens, Supreme Court nominee Neil Gorsuch’s fingerprints are all over the Bush administration’s GuantÃ¡namo policy, too. While at the Office on Legal Counsel, he helped the administration fight a major legal challenge to that policy in Hamdan v. Rumsfeld. In that case, the government argued that detainees at GuantÃ¡namo did not have the right of habeas corpus, that the president has the authority to decide not to abide by the Geneva Conventions, and that detainees could be tried by military “commissions” in Cuba rather than by U.S. courts. Given that history, it’s unlikely he’d rule in favor of any future challenge to whatever use President Trump made of the prison.
While on the campaign trail, Trump made it clear that he would keep GuantÃ¡namo eternally open. In a November rally in Sparks, Nevada, he told a cheering crowd:
“This morning, I watched President Obama talking about Gitmo, right, GuantÃ¡namo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open... and we're gonna load it up with some bad dudes, believe me, we're gonna load it up.”
In mid-February, Trump Press Secretary Sean Spicer reiterated his boss’s affection for the prison, when he told the White House press corps that the president believes it serves “a very, very healthy purpose in our national security, in making sure we don’t bring terrorists to our seas.” Perhaps Spicer meant “our shores,” but the point was made. Trump remains eager to keep the whole GuantÃ¡namo prison system -- including, we can assume, indefinite detention -- up and running as an alternative to bringing prisoners to the United States.
It seems that the head of the Pentagon agrees. In December 2016, retired Marine General (now Secretary of Defense) James Mattis told the Senate Armed Services Committee that any detainee who “has signed up with this enemy” and is captured wherever “the president, the commander-in-chief, sends us” should know that he will be a “prisoner until the war is over.” Given that our post-9/11 military conflicts are truly forever wars, in Mattis’s view, pretty much anyone the U.S. captures in Syria, Iraq, Afghanistan, Somalia, Yemen, or who knows where else will face at least the possibility of spending the rest of his life in GuantÃ¡namo.
Reading the Tea Leaves
As far as we know, President Trump has yet to green-light his first case of torture or his first extraordinary rendition, or even to add a single prisoner to the 41 still held at GuantÃ¡namo. All we have for now are his ominous desires and promises -- and those of his underlings. These are enough, however, to give us a clear understanding of his intentions and those of his appointees. If they can, they will resurrect the unholy trinity of torture, rendition, and indefinite detention. The future may not yet be inscribed in Trumpian gold anywhere, but on such matters we should believe the autocrat.