Op-Ed: Is America on the brink of returning to torture?

Donald Trump has declared his intentions: He wants to make America torture again. He’s said that as president he would use waterboarding “and worse” on terrorists and “take out” their families. We might expect such rhetoric from a candidate so politically inexperienced and prone to bullying, but what is more alarming is how little distinguishes his torture enthusiasm from that of the other leading Republican candidates, Florida Sen. Marco Rubio and Texas Sen. Ted Cruz.

Granted, neither is as blunt as Trump. Rubio refuses to condemn torture and then offers a favorite dog-whistle statement: Captured terrorists “are getting a one-way ticket to Guantanamo Bay, Cuba, [where] we are going to find out everything they know.” Cruz relies on his well-honed double-speak; he claims to be against torture — which he then defines as “excruciating pain that is equivalent to losing organs and systems.” That, of course, was the same narrow definition the Bush administration used to justify its torture policies.

I spent five years in the Bush Pentagon as Navy general counsel and confronted such perverse thinking about torture then. I witnessed personally the damage inflicted on our military when it acceded to the demands of George W. Bush, George Tenet and Donald Rumsfeld to use torture. After the debacles of Guantanamo and Abu Ghraib, I saw how difficult it was to restore discipline, values and honor to the military, and how American lives were lost when terrorists and foreign fighters were given cause to join our enemies.

If any of these GOP candidates make it to the White House, would anything prevent the U.S. from falling back into the moral and legal abyss of torture?

Gen. Michael Hayden suggested the answer might be yes during an interview last month. “If [Trump] were to order that once in government, the American armed forces would refuse to act... You’re required to not follow an unlawful order,” said the former director of the NSA and CIA on “Real Time with Bill Maher.” He’s right that torture and the targeting of innocents are violations of international (and U.S.) law. He’s right, too, that given the lessons learned after the Abu Ghraib scandal, the U.S. military would not carry out such an order.

But we should take note of Hayden’s silences as well as his words. He was mute, for instance, on what the CIA, the Department of Justice or other federal agencies would do if ordered to torture. Given that the CIA was the ultimate tool of choice to apply torture during the Bush administration, a refusal by the military to torture is no guarantee that other agencies would also refrain.

It’s ironic that Hayden — the most vigorous current defender of CIA practices during the Bush era — is the one now sounding the alarm about Trump’s torture talk. To be sure, Hayden arrived to lead the CIA after the Bush administration largely had suspended its use of “enhanced interrogation techniques” and “extraordinary renditions.” So he doesn’t bear responsibility for creating those policies. But he did help shield the CIA from accountability and reform and, as a result, he helped make torture cost-free to those who devised and inflicted it.

Our failure to hold ourselves accountable drains the crime of torture of its proper gravity, serves to encourage those (like Trump, Rubio and Cruz) who wish to use it again, and helps explain why being pro-torture is no longer stigmatized. A 2015 Pew Research Center survey found that 73% of Republicans and 58% of all Americans think “torture can be justified against people suspected of terrorism.”

As mentioned, although Hayden said the military would not torture, he tellingly did not say the CIA would also refuse to do so.

Current CIA director John Brennan has devoted his skill and energy not to reform, but to blunting Senate oversight of its disastrous Rendition, Detention, and Interrogation program and to ensuring that those responsible for it stay on the promotion ladder.

The story is much the same at the Department of Justice, which gave legal cover to the Bush administration’s torture policies. It failed to censure any of the attorneys involved or to prosecute anyone for inflicting or authorizing torture. Instead the DOJ has, perversely, focused its energies on prosecuting torture whistleblowers; shielding torture documents from discovery in judicial proceedings; supporting a dysfunctional military commission system that can’t resolve how to deal with the torture of its defendants; and asserting state-secret objections in federal courts to block every claim for civil remedies pursued by torture victims.

A President Trump or Atty. Gen. Cruz bent on restoring torture would find much to like at the DOJ and the CIA.

Compared with these largely unreformed agencies, the U.S. military looks positively enlightened. I have discussed the issue with scores of three- and four-star flag rank officers. To a man and woman, every one opposes torture and regards with contempt the Bush administration’s decision to use it. Its illegality, though, is not the only reason. Like Arizona Sen. John McCain, they recognize that the character of an America that tortures is coarser than one that does not. They understand that we must foster a world that is less, not more, cruel and that adherence to the architecture of international law and human rights is in our national interest.

It is, of course, the military that experienced first-hand the strategic damage caused by our use of torture. Torture diminished our ability to sharply distinguish our principles and war aims from those of our Al Qaeda and Islamic State enemies. It hurt international public support for American leadership and tore at the fabric of the alliance we had created.

By using torture we also handed our enemies a gift. We alienated millions of Muslims whose support is critical to success in the war on terror. From Guantanamo and Abu Ghraib to the present, we enabled the Taliban, Al Qaeda and now Islamic State to use the theme of American cruelty against Muslims as a recruiting tool — and that message remains potent because it was true.

The fevered talk of torture in the Republican primary reveals how thoroughly the allure of torture has infected our nation, how shallow our understanding of the cost and consequences of torture remains, how lacking our leadership is on this critical issue, and how close we are again to picking up the weapon whose use would destroy what we seek to protect.

Alberto Mora, a senior fellow at Harvard’s Carr Center for Human Rights Policy, was general counsel of the Navy from 2001 to 2006.

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