On Interrogations Pompeo Pledges to Follow the Law—and the Law Bans Torture

Mike Pompeo, President Trump’s nominee for Director of the CIA, has committed to upholding the laws that bar U.S. personnel from using torture in national security interrogations. For Pompeo, who has espoused pro-torture views before, this is an important development. Though some have noted that some of his statements during the confirmation process seem to create doubt about his intentions, he says he remains committed to the law. And the law resoundingly says that torture is illegal.

With the passage of the McCain-Feinstein Amendment in 2015, all national security interrogations must be conducted according to the Army Field Manual, the U.S. military interrogation manual. This means that the “enhanced interrogation techniques” of the Bush Administration—including the infamous practice of waterboarding—are not permitted.

Some have raised alarm over Pompeo’s written answers to Senators’ questions, in which he notes that he would “consult with experts at the Agency and at other organizations” (such as the FBI and Defense Department) on whether the Army Field Manual tactics are “an impediment to gathering vital intelligence to protect the country or whether a rewrite of the Army Field Manual is needed.” He also writes that “If experts believed current law was an impediment to gathering vital intelligence to protect the country, I would want to understand such impediments and whether any recommendations were appropriate for changing current law.”

However, in the same response, Pompeo writes, “If any differences are justified, a fundamental requirement is that such differences fully comply with law, including laws governing the treatment and interrogation of individuals.” Pompeo told Senator Dianne Feinstein at his confirmation hearing (on the record) that even if the president asked him to, he would not reinstate enhanced interrogation techniques. In his pre-hearing responses, he also noted that “CIA activities concerning any detention, interrogation and transfer practices should comply with the law in all respects.”

The Army Field Manual does contain some flaws, notably in the form of its Appendix M, which allows tactics such as separation and isolation for significant periods of time. These tactics can be used as torture or abuse. But the McCain-Feinstein amendment mandates review of the Manual, and with nominees on the record against torture, these passages may be stripped.

As we explain in our issue brief “Torture and Cruel Treatment: Prohibitions Under Domestic and International Law,” McCain-Feinstein is not the only legal roadblock to torture. There are many laws (both in U.S. law and international law) that prohibit the use of torture and cruel treatment that go beyond the McCain-Feinstein’s law’s restrictions. Pompeo’s commitment that, under his leadership, CIA interrogation policy would always abide by these laws is a positive development.

Not only is torture illegal, but it is ineffective and damages the country’s national security. This month, 176 of the country’s most respected retired generals and admirals wrote to President Trump imploring him not to use torture because it “increases the risks to our troops, hinders cooperation with allies, alienates populations whose support the United States needs in the struggle against terrorism, and provides a propaganda tool for extremists who wish to do us harm.” Professional interrogators agree, adding that “It tends to produce unreliable information because it degrades a detainee’s ability to recall and transmit information, undermines trust in the interrogator, and often prompts a detainee to relay false information that he believes the interrogator wants to hear.” Scientific experts back this assessment.

There’s a good reason to be wary of a CIA Director who has supported torture in the past, especially as President Trump has repeatedly expressed his fondness for torture and pledged to bring back its use. There’s also precedent for government lawyers twisting the law to sanction torture. The Bush Administration’s loophole-lawyering led to the use of enhanced interrogation techniques, as detailed in the Senate Intelligence Committee’s report on CIA torture and abuse. The laws in place now prevent such misinterpretations, and Attorney General nominee Senator Jeff Sessions has repudiated the Bush Administration’s legal interpretations in his own nomination process. So long as Pompeo is sincere in his stated commitment to uphold those laws, the United States will not be able to reinstitute a policy of CIA torture.


Published on January 23, 2017


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