A CASE AGAINST TORTURE Arthur H. Westing

This post was written by my friend and neighbor Arthur H. Westing.  Arthur is best known as the scientist who brought the information out of Vietnam that Agent Orange had been used in American bombing and had now seeped into the natural environment where it could be counted on to cause cancers in all living things for generations.  He did this during the war, no easy matter.  His books on environmental degradation caused in war zones are important information for environmentalist and peace activists around the world.  I am honored to have him living nearby - John Calvi, founding convener QUIT!

A CASE AGAINST TORTURE Arthur H. Westing
A number of talking heads and other pundits have recently been voicing strong support for the continued use of torture by our government's interrogators in order to extract useful information from prisoners in our custody. The basis for this renewed overt support of torture has been based largely on our government's somewhat ambiguously stated revelation that Osama bin Laden's whereabouts had been thus extracted. Simply stated, the use of torture by our government on my behalf is utterly repulsive to me. The ends, even if they were unambiguously productive, simply do not justify the means of this degrading action; nor does the fact that some other governments do likewise (indeed, some on our behalf). But as a practical aside, studies suggest that the overall utility of torture is at best marginal.
International humanitarian law is on the one hand a reflection and codification of existing ethical principles, and on the other a normative function of further reinforcing those principles of human decency. The brutal actions carried out by various of the parties to World War II led in due course to their almost universal rejection. Thus, in becoming states parties to 1949 Geneva Convention III most nations of the world (including the United States since 1956) have formally agreed "That prisoners of war are entitled in all circumstances to respect for their persons and their honour....No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind".
Similarly, in becoming states parties to 1949 Geneva Convention IV, the United States and most other nations have agreed that "No physical or moral coercion shall be exercised against civilian detainees, in particular to obtain information from them or third parties....Civilian detainees who are confined pending proceedings or serving a sentence involving loss of liberty, shall during their confinement be humanely treated....Imprisonment in premises without daylight, and, in general, all forms of cruelty without exception are forbidden".
The norms of appropriate human behavior just outlined have been reinforced by two additional widely adopted treaties, both of which are, in fact, applicable during both wartime and peacetime. Thus, the 1966 International Covenant on Civil and Political Rights (with the United States a state party since 1992) requires that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Even more explicit, the 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (with the United States a state party since 1994) really lays it on the line: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of

war or a threat of war, internal instability or any other public emergency, may be invoked as a justification of torture....Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment".
I might add that both of the two above-quoted 1949 Geneva Conventions define as a grave breach, i.e., as a war crime, to deprive a prisoner of a fair trial, or to wilfully kill, torture, or otherwise cause the prisoner inhuman treatment or great suffering. In light of the humanity that we must all embrace for ethical if not legal reasons, as spelled out in substantial part in the four described treaties (and thereby constitutionally even a component of the supreme law of our land), I consider it thoroughly reprehensible that our or any other government, or indeed any individual, could promote or even accept the use of torture. ------------------------------------------------------
The author is a consultant in international environmental security based in Putney.
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Appeared in: Brattleboro [VT] Reformer 99(75):4. 28-29 May 2011. 

Trump Poised to Lift Ban on C.I.A. ‘Black Site’ Prisons

Trump Poised to Lift Ban on C.I.A. ‘Black Site’ Prisons

CHARLIE SAVAGE   JAN. 25, 2017

https://www.nytimes.com/2017/01/25/us/politics/cia-detainee-prisons.html?smprod=nytcore-ipad&smid=nytcore-ipad-share&_r=0

WASHINGTON — The Trump administration is preparing a sweeping executive order that would clear the way for the C.I.A. to reopen overseas “black site” prisons, like those where it detained and tortured terrorism suspects before former President Barack Obama shut them down.

President Trump’s three-page draft order, titled “Detention and Interrogation of Enemy Combatants” and obtained by The New York Times, would also undo many of the other restrictions on handling detainees that Mr. Obama put in place in response to policies of the George W. Bush administration.

If Mr. Trump signs the draft order, he would also revoke Mr. Obama’s directive to give the International Committee of the Red Cross access to all detainees in American custody. That would be another step toward reopening secret prisons outside of the normal wartime rules established by the Geneva Conventions, although statutory obstacles would remain.

Mr. Obama tried to close the prison at Guantánamo Bay, Cuba, and refused to send new detainees there, but the draft order directs the Pentagon to continue using the site “for the detention and trial of newly captured” detainees — including not just more people suspected of being members of Al Qaeda or the Taliban, like the 41 remaining detainees, but also Islamic State detainees. It does not address legal problems that might raise.

The draft order does not direct any immediate reopening of C.I.A. prisons or revival of torture tactics, which are now banned by statute. But it sets up high-level policy reviews to make further recommendations in both areas to Mr. Trump, who vowed during the campaign to bring back waterboarding and a “hell of a lot worse” — not only because “torture works,” but because even “if it doesn’t work, they deserve it anyway.”

Elisa Massimino, the director of Human Rights First, denounced the draft order as “flirting with a return to the ‘enhanced interrogation program’ and the environment that gave rise to it.” She noted that numerous retired military leaders have rejected torture as “illegal, immoral and damaging to national security,” and she said that many of Mr. Trump’s cabinet nominees had seemed to share that view in their confirmation testimony.

“It would be surprising and extremely troubling if the national security cabinet officials were to acquiesce in an order like that after the assurances that they gave in their confirmation hearings,” she said.

A White House spokesman did not immediately respond to an email inquiring about the draft order, including when Mr. Trump may intend to sign it. But the order was accompanied by a one-page statement that criticized the Obama administration for having “refrained from exercising certain authorities” about detainees it said were critical to defending the country from “radical Islamism.”

Specifically, the draft order would revoke two executive orders about detainees that Mr. Obama issued in January 2009, shortly after his inauguration. One was Mr. Obama’s directive to close the Guantánamo prison and the other was his directive to end C.I.A. prisons, grant Red Cross access to all detainees and limit interrogators to the Army Field Manual techniques.

In their place, Mr. Trump’s draft order would resurrect a 2007 executive order issued by President Bush. It responded to a 2006 Supreme Court ruling about the Geneva Conventions that had put C.I.A. interrogators at risk of prosecution for war crimes, leading to a temporary halt of the agency’s “enhanced” interrogations program.

Mr. Bush’s 2007 order enabled the agency to resume a form of the program by specifically listing what sorts of prisoner abuses counted as war crimes. That made it safe for interrogators to use other tactics, like extended sleep deprivation, that were not on the list. Mr. Obama revoked that order as part of his 2009 overhaul of detention legal policy.

One of the Obama orders Mr. Trump’s draft order would revoke also limited interrogators to using techniques listed in the Army Field Manual. But in 2015, Congress enacted a statute locking down that rule as a matter of law, as well as a requirement to let the Red Cross visit detainees. Those limits would remain in place for the time being.

Still, the draft order says high-level Trump administration officials should conduct several reviews and make recommendations to Mr. Trump. One was whether to change the field manual, to the extent permitted by law. Another was “whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States” by the C.I.A., including any “legislative proposals” necessary to permit the resumption of such a program.

It was not clear whether the C.I.A. would be enthusiastic about resuming a role in detaining and interrogating terrorism suspects after its scorching experience over the past decade. In written answers to questions by the Senate Intelligence Committee, Mr. Trump’s C.I.A. director, Mike Pompeo, said he would review whether a rewrite of the field manual was needed and left the door open to seeking a change in the law “if experts believed current law was an impediment to gathering vital intelligence to protect the country.”

Mr. Trump’s order says no detainee should be tortured or otherwise subjected to cruel, inhuman or degrading treatment “as prescribed by U.S. law,” but it makes no mention of international law commitments binding the United States to adhere to humane standards even if Congress were to relax domestic legal limits on interrogations, such as the Convention Against Torture or the Geneva Conventions.

Another core national security legal principle for Mr. Obama was to use civilian courts, not military commissions, whenever possible in terrorism cases — and to exclusively use civilian law enforcement agencies and procedures, not the military, to handle cases arising on domestic soil. The draft order also signals that the Trump administration may shift that approach as well.

In 2012, after Congress enacted a statute mandating that the military initially take custody of all foreign Qaeda suspects, Mr. Obama issued a directive that pre-emptively waived that rule for most domestic circumstances, such as if the F.B.I. had arrested the suspect and was already in the process of an interrogation.

But Mr. Trump’s draft order calls for the attorney general, in consultation with other national-security officials, to review that directive and recommend modifications to it within 120 days.

Many Republicans — including Senator Jeff Sessions, Mr. Trump’s attorney general nominee — criticized the Obama administration’s approach as weak, even though the civilian court system has regularly convicted terrorists at trial while the military commissions system has proved to be dysfunctional. During the campaign, Mr. Trump said he would prefer to prosecute terrorism suspects at Guantánamo — including American citizens, although the law currently limits the commissions system to foreign defendants.

Against that backdrop, Mr. Trump’s draft order would direct Defense Secretary James N. Mattis, along with the attorney general and the director of national intelligence, to “review the military commissions system and recommend to the president how best to employ the system going forward to provide for the swift and just trial and punishment of unlawful enemy combatants detained in the armed conflict with violent Islamist extremists.”

Tom Malinowski, who was assistant secretary of state for human rights in the Obama administration, said the draft order showed that everyone who thought the office of the presidency or the advice of cabinet secretaries like Mr. Mattis would temper Mr. Trump “is being shown wrong again.”

“He’ll listen to his worst instincts over his best advisers unless restrained by law,” Mr. Malinowski said.

TRUMP’S TOUGH-GUY TALK ON TORTURE RISKS REAL LIVES

TRUMP’S TOUGH-GUY TALK ON TORTURE RISKS REAL LIVES

By Jane Mayer   January 25, 2017

http://www.newyorker.com/news/news-desk/trumps-dangerous-fantasies-about-torture?mbid=nl_TNY%20Template%20-%20With%20Photo%20(125)&CNDID=11599808&spMailingID=10308249&spUserID=MTQ4MjU3NTk4NDI5S0&spJobID=1082175763&spReportId=MTA4MjE3NTc2MwS2

In an interview with his biographer Michael D’Antonio, Donald Trump explained that although he received a medical deferment rather than serving in the war in Vietnam, “I always felt that I was in the military.” This was, as D’Antonio reported in “Never Enough: Donald Trump and the Pursuit of Success,” because he spent his high-school years at a military-themed boarding school, not far from West Point.

Last Saturday, President Trump trumpeted his military expertise during a visit to the C.I.A.’s headquarters, in Langley, Virginia, where he praised his nominee to direct the C.I.A., Michael Pompeo, for being first in his class at West Point. Then he digressed, noting, “I know a lot about West Point. . . . Trust me, I’m, like, a smart person.”

One difference between serving in the military and being a pretend soldier at the New York Military Academy, where Trump proudly led mock drills in snappy faux military uniforms, is that, in the real thing, officers are drilled not just in marching formations but also in the laws of war. These include the Geneva Conventions and the Convention Against Torture, which impose absolute, unconditional bans on torture and other forms of cruel and inhumane treatment of enemy combatants, categorizing such conduct, under any and all circumstances, as a war crime.

In an interview with ABC’s David Muir, made available on Wednesday, Trump gave a cursory nod to those laws. Asked if he wanted U.S. forces to use waterboarding, the President said that he would listen to his advisers, but that he wanted to do everything “within the bounds of what you’re allowed to do legally” to “fight fire with fire.” He told Muir, “I have spoken, as recently as twenty-four hours ago, with people at the highest level of intelligence, and I asked them the question: Does it work? Does torture work? And the answer was yes, absolutely.” He added, with emphasis, “Do I feel it works? Absolutely I feel it works.”

The interview came on the same day that several news organizations published a draft executive order that, if signed, would command the Trump Administration to review the possibility of reintroducing C.I.A.-run “black site” detention camps for terror suspects and the use of brutal interrogation techniques. These practices were used during the early years of the War on Terror, but were shut down after the Supreme Court declared them subject to prosecution. At the daily White House press briefing on Wednesday, Trump’s press secretary, Sean Spicer, described the draft as “not a White House document.” Still, it was circulating through high levels of the government, and President Trump’s sentiments were clear.

As any military expert could tell Trump, torture only increases the danger that soldiers face. It produces false intelligence, increases the risk that captured soldiers will themselves be tortured, and undermines discipline and moral authority. This is a lesson that George Washington knew well. As a general in the Revolutionary War, he vowed that, unlike the British, who tortured their captives, this new country would distinguish itself by its humanity toward enemy combatants. Washington’s order proved not just moral but also practical. As David Hackett Fischer wrote in “Washington’s Crossing,” his Pulitzer Prize-winning history, Washington’s superior treatment of enemy captives fomented desertion among British and Hessian soldiers, and bolstered the American soldiers’ morale.

Washington’s enlightened orders formed the backbone of U.S. military policy until the War on Terror. America didn’t always live up to these ideals, but it nonetheless valued them, and enshrined them in law. The original copies of the Geneva Conventions are kept in a safe at the State Department, signed by, among others, Winston Churchill, whose bust Trump reportedly has chosen to give a place of honor in his Oval Office.

The horrifying consequences of abandoning the high road are catalogued in the Senate Select Committee on Intelligence’s 2014 report on the C.I.A.’s use of torture during the Bush era. Daniel J. Jones, the congressional staff member who was the lead author of the Senate report, told me that, should Trump choose to read it, he would see that “it clearly details how the C.I.A. internally came to the conclusion that their interrogation program was ineffective—and that the C.I.A. should not be operating detention sites.”

As Trump readily admits, he doesn’t feel he has time to read anything lengthy, which would seem to preclude his absorption of the five-hundred-page declassified summary of the Senate report, not to mention the six-thousand-seven-hundred-page classified original. It doesn’t help, either, that the Obama Administration, in deference to the wishes of the C.I.A., declined to hold anyone in the intelligence community accountable for the Bush-era torture program. Obama instead chose to, as he put it, “turn the page.” Unfortunately, that has made it all too easy for a new Administration to look to the old playbook. These missteps, Jones said, “are just dumbfounding.”

Luckily, if Trump were to sign the draft executive order, the decision on whether to return to the brutal detention and interrogation techniques that former Vice-President Cheney called “the dark side” would not be made by the President alone. According to the draft, it would be made in consultation with the Defense Secretary, the Attorney General, and various leaders of the intelligence community. Congress and the courts have major roles to play as well. And, while Trump may have missed the lessons of recent history, several of his top appointees are not just well informed but also have personal experience in this area.

As the Times reported, James Mattis, Trump’s Defense Secretary, like virtually every American military leader, is deeply opposed to the use of torture and the mistreatment of enemy combatants. As a Major General in Iraq, Mattis oversaw the swift court martial of U.S. marines under his command who had killed a captured suspect during a brutal interrogation. Trump seemed amazed to learn of Mattis’s opposition to torture, telling the Times, during a meeting with editors and reporters, that Mattis had told him that a beer and a pack of cigarettes work better. Trump’s surprise was itself a surprise to anyone with a modicum of understanding of American military history.

Daniel Coats, Trump’s choice for National Intelligence director, has also had a first-hand look at the costs of the C.I.A.’s former detention and interrogation program. He served as George W. Bush’s Ambassador to Germany, and had to explain to Germany’s Interior Minister, Otto Schily, that the C.I.A. had made an embarrassing mistake: it had “renditioned”—meaning kidnapped—the wrong German, whisking him to a secret black-prison site and physically tormenting him for five months. Coats convinced Schily not to press charges, and to keep the intelligence fiasco secret, but, after being freed, the mistaken suspect, Khalid El-Masri, won a suit in the European Court of Human Rights, in Strasbourg. The court found that he had been tortured, publicly shaming the C.I.A., and condemned the countries that had assisted in the secret program.

Scott Horton, a human-rights lawyer and advocate, predicts that reopening the C.I.A.’s program would present huge legal issues. “I think they would do whatever they can to keep it out of the federal courts, but it’s likely they’d face troubles trying to do this anywhere in Europe. North Africa and the Middle East are another question. Where would Trump put these black sites? Morocco, Egypt, and Israel would be the logical candidates,” he said. He also noted that “NATO is already under heavy pressure by Trump, but the black-site regime will again test NATO’s relationship with the U.S. Previously, Hungary, Poland, Lithuania, and Romania were among the nations providing cover for C.I.A. torture and ‘disappeared’ imprisonment. Will they be challenged to do this again?”

The answer is no, if John McCain, the Senate’s best-known military hero, has anything to say about it. Trump belittled McCain during the campaign for having been captured during the Vietnam War, but McCain now is in position to teach the President a thing or two about how real soldiers think. Using Trump’s favorite weapon—Twitter—McCain fired back, “@potus can sign whatever executive orders he likes, but the law is the law – we’re not bringing back torture.”

Donald Trump Has a Passionate Desire to Bring Back Torture

 Donald Trump Has a Passionate Desire to Bring Back Torture

And that should be no surprise to anyone who’s been paying attention.  Rebecca Gordon   APRIL 6, 2017

https://www.thenation.com/article/donald-trump-has-a-passionate-desire-to-bring-back-torture/

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, Obama made major efforts to suspend Bush-era violations of US 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 US military prison at Guantánamo 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 US 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 émigré 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.

TORTURE REDUX

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 21st-century US 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 US 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 Trump 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 Independent reported, 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 US 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 UN 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 US Army Sgt. Joe Darby. He then passed them up the chain of command, which eventually led to the public revelation of the abuses in that US-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 US 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 US 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.

DÉJÀ 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 Guantánamo and allowing the jailing and trial of suspected terrorists in US 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 toldThe Wall Street Journal that, last September, Lt. Gen. 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 United States 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. Top of Form

       Bottom of Form            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 US government cover for what was bound to occur in the prisons of countries known for torture. (Just ask Maher Arar, who was rendered to Syria, or Binyam Mohammed, who was rendered to Morocco, about what happened to them.)

WE’LL ALWAYS HAVE GUANTÁNAMO…

“We’ll always have Paris,” Rick reminds Ilsa during their bittersweet goodbye in the classic film Casablanca. Our Guantánamo 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 Guantánamo, with its memories of torture and murder, and its remaining 41prisoners, undoubtedly stranded there forever.

As it happens, Supreme Court nominee Neil Gorsuch’s fingerprints are all over the Bush administration’s Guantánamo 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 Guantánamo 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 US 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 Guantánamo eternally open. In a November rally in Sparks, Nevada, he tolda cheering crowd:

This morning, I watched President Obama talking about Gitmo, right, Guantánamo 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 Guantánamo 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 Gen. (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 US 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 Guantánamo.

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 Guantánamo. 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.