International law experts say that as president, Donald Trump could theoretically follow through on his plan to legalize torture, but warn that doing so would result in one of the biggest foreign policy blunders in American history.
Trump has been advocating bringing back waterboarding and other severe torture tactics throughout the campaign, and on Sunday he said that in order to avoid forcing the military or the CIA from doing anything illegal, he would just legalize torture.
Trump spokesperson Katrina Pierson assured that Trump doesn’t want to go so far as beheading anyone, but nonetheless defended the proposal on CNN on Monday.
“Right now we’re telling them we’re not going to come after you. We’re not going to hurt you. If we capture you we’re going to put you in prison and give you fish sandwiches,” she said. “Mr. Trump is not going to be that nice when it comes to terrorism.”
In order to legalize torture, Trump would first most likely rescind President Obama’s executive orders banning torture. With a compliant Congress, he would repeal existing statutes banning torture — or amend them to say which torture tactics he thinks should be allowed — and change or repeal anti-torture measures in war crimes law, the Detainee Treatment Act, and the 2016 Defense Authorization Act.
He could also force the military to rewrite the Army Field Manual on interrogation to permit torture.
Incidentally, Trump’s fellow GOP contender Ted Cruz does not think waterboarding is torture and has not ruled it out. Therefore, he too would have to go through a similar process to legalize it should he become president.
But David Luban, a University Professor and Professor of Law and Philosophy at Georgetown Law, told BNR that it’s unlikely any of this will come to pass, mainly because the politics aren’t good, but also because it would ruin America’s standing around the world.
“We would be the only country in the world not party to the Geneva Conventions, and the only country ever to quit the Convention Against Torture,” he said. “It would be one of the biggest foreign policy setbacks the U.S. has ever experienced. It would be a triumph for our international adversaries, a humiliation in the eyes of our allies, and strengthen the hands of every human rights violator on the planet.”
Laura Pitter, Senior National Security Counsel at Human Rights Watch, said that even though he’s not president, Trump’s campaign rhetoric on torture is “an embarrassment for the U.S.”
“The ban against torture is the strongest international norm that exists in international law,” she told BNR. “The U.S. was instrumental in creating the Convention Against Torture, so to have a presidential candidate out there talking about conduct that is in clear violation of the treaty really is not helpful to the effort to prevent torture globally and to promote the rule of law globally.”
Pitter said that one factor that contributes to why we’re even talking about Trump’s proposal to legalize torture is that no one from the Bush administration era has been held accountable.
“It’s unfortunate that the Obama administration hasn’t prosecuted anyone for it because it would solidify more concretely the ban against the type of conduct,” she said. “I think we would be in a very different place if there had been criminal sanctions for what happened during the prior administration.”
(AP Photo/Brynn Anderson)