President Trump has threatened to reinstate torture as U.S. policy. Human Rights organisations are committed to holding torturers accountable. President Trump says that “torture works” (1,2). His office has released a draft order (3) stating an intention to make ‘modifications and additions’ to the policies the US employs for the “safe, lawful and effective interrogation of enemy combatants captured in the fight against radical Islamism” (sic).
Trump’s draft order would review interrogation techniques and facilities, and would instruct the Pentagon to send newly captured “enemy combatants” to Guantanamo Bay. The draft explicitly rejects “torture,” but plays games with definitions. Trump’s draft order calls for reinstating “to the extent permitted” by current law an executive order that President Bush signed in 2007 and Obama later revoked.
Torture is morally, ethically and legally unacceptable, it degrades the torturer and it compromises the moral authority of the state that authorises it, but Mr Trump suggests that the end justifies the means. He claims as justification the terrible acts and crimes against humanity perpetrated by groups such as the self-styled ISIL, and the fact that some former inmates of CIA detention sites have gone on to join the ‘war on terror’.
Donald Trump statements on ‘enhanced interrogation’ and torture.
- Trump, Feb. 17: Torture works. OK, folks? You know, I have these guys—”Torture doesn’t work!”—believe me, it works. And waterboarding is your minor form. Some people say it’s not actually torture. Let’s assume it is. But they asked me the question: What do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding.
- Trump, July 27 press conference: “I am a person that believes in enhanced interrogation, yes. And by the way, it works.”
Trump stands alone in his view. In 2005 the United Nations special rapporteur on torture, Juan Mendez stated that waterboarding is torture—”immoral and illegal”.
American and European officials including former CIA Director Leon Panetta have called “enhanced interrogation” a euphemism for torture. In July 2014, the European Court of Human Rights formally ruled that “enhanced interrogation” is torture (5). In 2009 President Barack Obama and Attorney General Eric Holder said that certain of the techniques are torture.
What is enhanced interrogation?
Enhanced interrogation is a euphemism for certain torture techniques. The US Senate Select Committee on Intelligence’s Study of the CIA‘s detention and interrogation activity from 2001-2009 (4) describes ‘enhanced interrogation’ techniques including slapping, walling, stress positioning, cramped confinement, sleep deprivation, confinement with insects, waterboarding, sexual humiliation, forcible high volume IV injections, extreme temperatures, and the rectal infusion of pureed food.
These behaviours are universally agreed to be morally and legally abhorrent and outside the moral norms that we claim for ourselves as humans. Almost every country in the world has banned torture. 191 out of 193 countries have signed UN treaties against torture. Even countries that we know employ torture routinely deny and condemn it.
What defines torture?
The UN defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him … or intimidating or coercing him or a third person…. when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Article 2 of the UN convention against torture, which the US signed in 1988, prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction. This prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever” may be invoked to justify torture. Subordinates who commits acts of torture also cannot abstain themselves from legal responsibility on the grounds of following orders. So every torturer trump appoints can be held personally accountable. The prohibition on torture applies to anywhere under a party’s effective jurisdiction inside or outside of its borders and protects all people under its effective control.
What does US Law say?
By reinstating enhanced interrogation, Trump would violate a US law ratified by the Senate in 2015.
CIA Director Mike Pompeo told senators earlier this month that he would “absolutely not” restart the CIA’s use of enhanced interrogation tactics that fall outside of Army Field Manuals. “Moreover, I can’t imagine I would be asked that by the President-elect,” Pompeo said during his confirmation hearing.
Imagination seems to have failed him as in a series of written responses to questions from members of the Senate intelligence committee, he has said he is open to making changes to that policy.
The Senate voted overwhelming to ban torture across the US government in 2015. Sen. John Thune, a South Dakota Republican, said the use of torture is “settled law” and that “Congress has spoken.”
“Reconstituting this appalling program would compromise our values, our morals and our standing as a world leader — this cannot happen,” Sen. Dianne Feinstein, a California Democrat, said in a statement the same day. “We can’t base national security policies on what works on television — policies must be grounded in reality.”
Is Trump right? Does it ‘work’?
Interrogation by torture relies on an assumption: that fear, stress and pain “break” suspects into delivering useful information. It’s a view replayed in film and TV, where torture is a plot device driving dramatic revelation of truth, and the end justifies the means.
There is good evidence on interrogation and brain function under stress (6). It shows that torture may get people to do things they don’t want to do, but this does not mean it extracts real information. There is good evidence that stress, fear and pain undermine the brain’s executive functions, including recall and cognition, making memory fallible and pushing individuals into confabulation which they may actually believe.
Memories are not recorded chronologically like films, they are fragile, and subject to revision and loss. This is made worse by time, suggestion under questioning, and new information. Memory reconstructs events, it doesn’t replay and reproduce them. Ask ten witnesses about the same event, even the next day, and they will describe it differently.
Punitive behaviour encourages people to lies, not to tell the truth (6). Truth comes only with cooperation, which does not result from aversive therapy and violation of social norms.
What about pain? Do people tell you truths that you want them to tell you because you hurt them? There is good research on the human response to inflicted pain. Pain experience is unpredictable and non-linear, which means pain doesn’t just get worse the more you do. Stress can reduce pain – anybody who has ever had a serious accident will remember how the injury at first sometimes doesn’t hurt at all. Pain management is a learned technique. People are able to withstand pain to a much greater degree than they, or interrogators, think they will (7). Shane O’Mara, Professor of Experimental Brain Research at Trinity College Dublin, in his book summarising the evidence against torture (6) suggests that there is probably no technique for inducing pain that will induce a well-prepared individual to want to reveal information before going into pain-induced shock or a dissociative state. Torture makes confession more likely, but such confessions are unreliable: false confessions are exceptionally easy to elicit experimentally. We see real examples of this. Men tortured in Turkey in 2013 describe giving interrogators random names to make it stop: those named were also arrested, and tortured for more names (8).
So what does work? Why not ask the police, who question people all the time without torturing them, and obtain confessions and helpful intelligence. People are more likely to reveal genuine memory if actively listened to, O’Mara cites lots of evidence that people are wired to want to describe motivation and experience. There are studies of police interviews in which 95% of suspects talked (e.g. the study in 9). There are questioning strategies which increase truthfulness, such as developing rapport, asking about events in reverse order, adding irrelevant questions, and maintaining eye contact.
Those who interrogate need appropriate training, based on evidence as well as ethics. One of the comments the CIA revealed in their report on torture was that interrogators were poorly trained and equipped. They didn’t know how to do what they were doing. They modelled their behaviour, they told the Senate intelligence committee, on Jack Bauer in ’24’. But this is fiction. It’s written to show a decent man who’s a hero, torturing people even when he hates to, because it works and it saves the day. This is fiction. It’s made up. It not only has no basis in reality, reality has tried to copy it.
And it didn’t work. The Senate report makes chilling reading. It suggests, in places, that the CIA carried on torturing people because two psychologists who had never interrogated anyone told them it would work, and their lawyers told them that it was only torture if it didn’t work.
Law enforcers may not feel like being nice to suspects, but if doing so yields useful information AND does not compromise their consciences, their morals and their future mental health it surely makes sense.
Applying extremes of pain, torment, and stress to captives before and during their interrogation will lead to confusion, or to a willingness to say what the captors seem to want to hear. Those being tortured may not even know what the truth is. Torture undermines the brain systems and circuits supporting the knowledge the suspect possesses. Pain is also a peculiar thing. We are built to hate it but survive and tolerate it. People have volunteered in experiments to have their teeth drilled into for the sake of measuring pain. If people will do that just for money, or to help science, what will they do if they believe in a cause?
Napoleon Bonaparte (1769-1821) said: The barbarous custom of having men beaten who are suspected of having important secrets to reveal must be abolished. It has always been recognised that this way of interrogating men, by putting them to torture, produces nothing worthwhile. The poor wretches say anything that comes into their mind and what they think the interrogator wishes to know.” Have we really not made progress since then?
- Donald Trump as reported by Ben Jacobs, The Guardian, 25 November 2016 (campaigning): https://www.theguardian.com/us-news/2015/nov/24/donald-trump-on-waterboarding-even-if-it-doesnt-work-they-deserve-it
- Trump, Feb. 17: Waterboarding and much worse. OK, folks? Washington Post Feb 17th 2016: https://www.washingtonpost.com/politics/trump-says-torture-works-backs-waterboarding-and-much-worse/2016/02/17/4c9277be-d59c-11e5-b195-2e29a4e13425_story.html?utm_term=.c6563142ec83
- Executive Order: detention and interrogation of enemy combatants: https://assets.documentcloud.org/documents/3412672/Trump-draft-executive-order-on-detention-and.pdf released by Washington Post 25/1/17
- The Official Senate report on CIA Torture: Senate Select Committee on Intelligence; Skyhorse Publishing (2015) ISBN 978-1-64350-602-1
- European Court of Human Rights Chamber Judgement 22 July 2016 : Chamber Judgements in two cases concerning the secret rendition of men suspected of terrorist acts.
- O’Mara S: Why Torture Doesn’t Work: The Neuroscience of Interrogation: (Harvard University Press 2015 ISBN 978-0-674-74390-8
- Ahmad AH, Zakaria R. Pain in Times of Stress. The Malaysian Journal of Medical Sciences : 2015;22(Spec Issue):52-61.
- Human Rights Watch Submission to UN Committee on Torture on Turkey, April 2016: http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/TUR/INT_CAT_CSS_TUR_23640_E.pdf
- Moston S and Engelberg T (1993) Police Questioning Techniques in Tape-Recorded Interviews with Criminal Suspects: Policing and Society 6:61-75
- Jantsch HH1, Kemppainen P, Ringler R, Handwerker HO, Forster C.Cortical representation of experimental tooth pain in humans. Pain. 2005 Dec 5;118(3):390-9. Epub 2005 Nov 14. https://www.ncbi.nlm.nih.gov/pubmed/16289801