Can the United States Torture Today?
By Charles Ozuna, Summer 2024 Barbara Harlow Intern in Human Rights and Social Justice
“I thought I was going to die,” said Majid Khan reflecting on his interrogation by the United States government.[1] Despite its message of being the civilizing force around the world, the aftermath of 9/11 saw the United States adopting unconscionable measures to combat terrorism. In the years following, stories of individuals subjected to U.S. interrogation techniques emerged, painting a terrifying picture of the lengths to which authorities are willing to go in the name of the “War on Terror.”
The War on Terror refers to the international military campaign launched by the United States in response to the September 11, 2001, terrorist attacks. This campaign aimed to eliminate al-Qaeda and other militant organizations, leading to prolonged conflicts in Afghanistan and Iraq. As a part of this war, the U.S. engaged in actions that many today consider to be torture. Though the U.S. had many protections in place to prevent torture prior to 9/11, the Bush Administration systematically ignored these legal protections. Under one such instance, the United States waterboarded two men a total of 266 times during a short period of time.[2] From 2002 to 2005, the Office of Legal Counsel (OLC), whose purpose is to provide legal services to the President, wrote several legal memorandums that gave the green light for the CIA and the U.S. military to engage in torture during the War on Terror. Although torture seemed to be unlawful, legal justifications made by the OLC came to the opposite conclusion. Given that former (and perhaps future) President Donald Trump has called for reinstating torture techniques, it must be examined if this is possible and how such actions were permitted.[3] And given the recent immunity decision issued by the Supreme Court, it must be determined if the President can still authorize the use of torture.[4]
However, before assessing the legal justifications of the United States, it is prudent to properly define torture. After all, many Americans still do not believe any of the actions committed by the United States during the War on Terror can be classified as such. Because there is a disconnect between those who believe the U.S. tortured and those that do not, a careful analysis of what can be classified as torture is needed.
Perhaps the reason for such a disconnect is because torture cannot be easily defined. Although legal definitions have attempted to define the scope of torture, vague and indecisive wording have muddied these potentially useful definitions. The United Nations established perhaps the most encompassing definition of torture when it adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on December 10, 1984. Article 1 of CAT establishes torture as any act that deliberately inflicts mental or physical pain on an individual for any purpose or reason.[5] Importantly, CAT broadens the definition of torture to include not only the infliction of pain but also intimidation. Consequently, the practice of mock executions should be considered torture under CAT, as mock executions are a form of intimidation. Although this definition seems concrete in its labeling of torture, there exists severe limitations that have allowed for continued debate over what is and what is not torture—especially in the subjectivity of its language.
The difficulty in labeling an action as torture comes with its assumed subjectivity. Although the definition of torture is the deliberate infliction of severe mental or physical pain on an individual, certain actions may have different effects on different people. A seemingly harmless action may inflict severe pain. For example, taking a toy away from a child may inflict severe mental pain on the child, but almost no one would consider this instance torture. Thus, a proper definition of torture must not be reliant on an individual’s reaction. Some have expanded the definition of torture to include violations of human dignity.[6] Karl Marx believed that the repetitive and often grueling work on factory assembly lines constitutes a form of torture: by confining an individual to a single room, performing a single task, it strips a person of their freedom.[7] However, Marx’s definition of torture as the violation of any human dignity again falls into the trap of subjectivity, though Marx also contests this subjectivity, stating that “It is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.”[8] Still, what may degrade the human dignity of one person may not do the same to another. Therefore, because the experience of the infliction of pain varies from person to person, it can almost always be argued that an action does not rise to the necessary threshold to be classified as pain. Therefore, to effectively define torture may only be possible in hindsight.
The United Nations Voluntary Fund for Victims of Torture outlines a unique definition of torture: “Torture is not an act in itself, or specific type of acts, but it is the legal qualification of an event or behaviour, based on the comprehensive assessment of this event or behaviour.”[9] From this definition, it seems that torture can only be declared to be torture until after the fact. In other words, nothing is torture until it is declared torture.
Human rights activist and literary scholar Barbara Harlow offers a compelling perspective on the theory and application of torture, focusing on the profound mental and physical impact of various interrogation techniques. Harlow emphasizes that the essence of torture is deeply rooted in the subjective experiences of those who endure it, diverging from Karl Marx’s notion of subjectivity and human dignity. Harlow argues that debates over whether specific acts qualify as torture often miss the larger point: if the discussion centers on whether something technically fits the category of torture, it indicates that severe harm has already been inflicted.[10] Harlow’s approach to the classification of torture goes beyond the law but relies heavily on the experiences of individuals involved in the act of torture itself. Harlow contends that the subjective experiences of those who participate in torture—both as victims and perpetrators—are often marginalized in official records. To properly understand the experiences of the individuals, we must turn to genres that allow for a more nuanced exploration of trauma, such as personal memoirs, letters, diaries, fiction, and poetry.
To illustrate her argument, Harlow examines the life of Ruth First, an anti-apartheid activist and member of the South African Communist Party who was imprisoned for 117 days in 1962. Harlow refers to First’s memoir, 117 Days (Penguin Books, 1965), to address the question: Was she tortured? Harlow responds with a stark, “What does it matter? And who cares?”[11] This response underscores that torture encompasses not only physical pain but also profound psychological pain. Harlow’s critique highlights the danger of fixating on defining torture within rigid parameters, as such debates can detract from our fundamental humanity. Instead of searching for precise boundaries, we should recognize that the experience of torture is inherently subjective and profoundly damaging, regardless of its classification. Another genre Harlow highlights is the play and the power of such a live medium to properly express the pain created through torture. Guantánamo: Honor Bound to Defend Freedom (Oberon Books, 2004), was written by British journalist Victoria Brittain and South African-born novelist Gillian Slovo. The play consists mostly of interviews and letters from former inmates of the Guantanamo Bay Detention Camp and testimony from their families.[12] The play, much like First’s memoir, serves as an alternative archive that preserves the subjective experiences of individuals that can often be minimized in official records or in law. The importance of Harlow’s argument is that we must not dilute our conversations of torture or allow them to be removed from the real harm inflicted onto individuals and that we can locate these experiences in genres that can properly express that harm.
Ultimately, while definitions of torture may differ from country to country and even regarding international law, what matters for our purposes is how torture is defined in the United States. When the U.S. ratified CAT in 1994, almost all articles relating to torture required further domestic legislation for prohibition against torture methods to take effect.[13] Under Section 2340A of Title 18, torture is defined as the intention to inflict severe physical or mental pain.[14] This definition only applies to instances of torture outside the U.S. and, importantly, only to severe instances of torture. A definition of torture must stray away from the subjective—such as what constitutes as severe. Therefore, a definition of torture must focus on the intention of those committing an action. If the intention behind an action is to inflict pain on an individual—regardless of desired outcome—then it should be considered torture. Because CAT has been ratified by the United States, any instances that violate CAT conducted by the U.S. will be considered torture.
Following the 9/11 attacks, the Bush Administration feared another attack on U.S. soil; as the United States began to capture and detain suspected terrorists as part of the War on Terror, the U.S. military and CIA desired additional methods to interrogate these detainees. To more quickly gather intelligence, the U.S. military and the CIA pushed to use more aggressive interrogation techniques on detainees gathered in the months following 9/11. Because of the atmosphere of a post-9/11 America, President Bush would approve a set of legal memorandums that would approve harsh interrogation techniques that amount to torture—the Torture Memos.[15]
These Torture Memos provide evidence to prove the U.S. tortured during the War on Terror; the U.S. knowingly engaged in actions that inflicted severe harm and suffering on individuals. In addition to the Torture Memos, the CIA’s Office of General Counsel (OGC) circulated a memorandum which outlined the potential legal defense that may be used to defend torture conducted by the agency.[16] The memorandum explicitly used the word torture to explain that, because of the severity of threats faced in a post-9/11 world, allowance of torture is necessary to prevent future attacks against the U.S.[17] The actions the U.S. engaged in during the War on Terror inflicted harm and suffering. The CIA held prisoners in several U.S.-run military prisons as well as black sites or prisons in countries around the world. The CIA subjected at least 39 of these prisoners to techniques that have been historically deemed as torture. These methods include, but are not limited to, waterboarding, sexual assault, sleep deprivation, and forced nudity.[18] Many of these prisoners remain permanently harmed, as they continue to suffer from severe mental health issues because of CIA interrogations.[19] The U.S. military also inflicted severe harm onto detainees, subjecting prisoners to physical threats, solitary confinement, and prolonged exposure to heat and noise. Much of U.S. military torture occurred within the Guantanamo Bay detention camp.
Barbara Harlow’s writings on Guantanamo Bay offer a critical lens through which to understand the United States’ use of torture. She focused not just on the interrogation methods, but also the issues involving the detainment of individuals. Harlow emphasizes the importance of the individual experiences of those who were detained: “crossed roads of colliding and colluding historical narratives, the stories of individual detainees, the characters, making up the plottings of political projects.”[20] As we begin to strip away the humanity of detainees (with the Bush Administration portraying them as “enemy combatants”), we begin to disregard people as worthy of being treated like people. That is, all people are worthy of being treated with kindness regardless of actions they may have committed. To emphasize the importance of the individual, Harlow highlights the horrifying case of Oman Khadr. Arrested when he was only 15 years old, Khadr has been called the “youngest convicted war criminal” and detained at Guantanamo Bay for ten years.[21] Khadr, a child, was subjected to many of the same abuses that other detainees faced: sleep deprivation, physical threats, and placing him in stress positions. Khadr’s treatment is a testament to what happens when a government denies the humanity of those it detains.
Given the fact that the United States possessed knowledge about the harm that its techniques would and did inflict on detainees, it can reasonably be concluded that the U.S. tortured individuals during the War on Terror. The OGC stretched legal meanings in the memoranda it provided to the President by providing incomplete legal assessments and ignoring how law is actually enforced. Furthermore, they also provided wide legal decisions that far expanded the powers of the executive branch beyond stated law. These legal manipulations supplied the basis for which the United States pursued torture in its foreign policy. So, now that it has been shown that the United States has committed actions arising to torture, it must be determined if the U.S. can torture today.
One way in which the United States could potentially reintroduce techniques that amount to torture is through Congress, but this is incredibly unlikely. As Congress enacted protections against torture, it can reverse those protections. If Congress wanted to, it could approve new legislation that could overturn the National Defense Authorization Act (NDAA) amendment as well as the Detainee Treatment Act (DTA). The DTA, passed in 2005, is all-encompassing in regulating interrogations—even if the actions occur outside U.S. jurisdiction, the bill prohibits the U.S. from engaging in practices that amount to torture on individuals in U.S. custody.[22] The NDAA amendment, passed in 2015, restricts interrogation methods by the U.S. to only those explicitly stated in Army Field Manual 2-22.3.[23] This manual includes what can and cannot be done during interrogations by the U.S. and forbidden methods including mock executions, sleep deprivation, and stress positions. The Army Field Manual can be revised to include or ban future techniques, so the amendment also requires continuous monitoring of U.S. interrogation techniques as well as providing access to government-held detainees to the International Committee of the Red Cross.
If the United States realistically wanted to reinstate torture methods as a part of U.S. interrogations, they would need to reverse these previous decisions. With these protections gone, the new ways in which torture is to be prevented is undone. But the political reality of the United States makes this event unlikely. The DTA overwhelmingly passed the Senate with a margin of 90-9. The NDAA amendment also passed with a margin of 78-21. Somewhat alarmingly, the NDAA amendment passed with a margin less than that of the DTA. While all Democrats in the Senate voted in support of the NDAA amendment in 2015, only 32 of the 53 Republican Senators voted in support of the amendment. This largely mirrors the trend found amongst Americans, as there exists a divide between Republicans and Democrats on whether the U.S. use of torture is ever acceptable. There could conceivably be a reality in which a new Republican president is able to push Congress to overturn torture prohibitions. Some current Republican Senators have even discussed this possibility, such as Senator Tom Cotton pledging his support for reinstating torture if the circumstances necessitate such a policy.[24] However, given the immense controversy and continued backlash following U.S. use of torture and the majority needed to achieve this goal, this seems very unlikely to occur.
Another possible way in which United States could reintroduce torture techniques is through executive power and exploiting loopholes in current law. As part of the NDAA amendment, the United States is restricted to using interrogation techniques as specified by the Army Field Manual 2-22.3. However, there exists potential for exploiting the techniques allowed by the Army Field Manual. There are still interrogation techniques that, if used in long durations, can constitute torture. These techniques include solitary confinement and sleep deprivation. If the President wanted to, he could appoint individuals who are in support of harsh interrogation methods to use the loopholes still present in U.S. law. Additionally, the President can still pass new executive orders that could potentially override a ban passed by Congress. However, established U.S. precedent has shown that executive orders are only enforced until superseded by or conflict with existing law. Thus, the use of executive orders would not be enough though, potentially the President could use legal loopholes to allow some interrogation techniques that could amount to torture. Given the large leaps needed for this scenario to arise, it seems unlikely the President by themselves would be able to reinstate torture.
It seems the largest vulnerability for the reinstatement of torture is the Army Field Manual. With the passing of the NDAA amendment, the ambiguity of law that allowed for the original Torture Memos to be written no longer exists. There is no longer abstract discussion of what is and what is not torture, there is a standardized list of techniques that are considered acceptable or unacceptable for use by any U.S. agency. However, a potential future administration could attempt to remove or add techniques that are allowed for use. However, the NDAA amendment also mandates a review to ensure that techniques allowed are in cooperation with U.S. commitments to CAT. However, this review is conducted by members appointed by the President. Therefore, the possibility of having an administration in place to approve torture techniques is possible but extremely unlikely. For even if a new presidential administration approved the use of harsh interrogation techniques, you would still need people to carry through these techniques. Many prominent CIA figures have stated that CIA officers would not conduct any torture techniques even if instructed following backlash during the War on Terror. Given the small probability of all these events occurring, it seems unlikely that this is an avenue through which torture can be instated.
But, as I began to write an optimistic outlook on the possibility of torture in the United States today, the U.S. Supreme Court issued an astonishing opinion in Trump v. United States.[25] The Supreme Court determined that the president has absolute immunity for any core constitutional power he exercises as president of the United States.[26] Core constitutional powers, as referred to in this case, refers to any explicitly given powers to the President under Article II of the Constitution. One of the main powers vested in the President under Article II is being the Commander in Chief of the military. Under this decision, any action that the president does while exercising his power as Commander in Chief cannot be considered illegal. This decision has significant implications, particularly in the context of the binding power of anti-torture legislation. But the ruling seems to suggest that the newly created legal safeguards against torture could now be vulnerable to the discretion of the sitting president.
What only a few months ago could be considered a sound legal protection against torture is now muddied by potential implications of this recent Supreme Court decision. If President Trump is to act on his 2017 promise to bring back waterboarding, there could be a potential avenue for this to occur. Almost half of Americans believe that there are some circumstances in which torture can be acceptable.[27] Therefore, it is not hard to imagine a political crisis in which the President, with public support, can officially order the use of torture on U.S. detainees.
[1] Julian Borger, “‘I thought I was going to die’: Guantánamo prisoner gives graphic testimony of CIA torture,” The Guardian, October 29.
[2] David Cole, The Torture Memos: Rationalizing the Unthinkable, (New York: The New Press, 2009), 8.
[3] Dan Mercia, “Trump on waterboarding: ‘We have to fight fire with fire.’” CNN. January 26.
[4] Trump v. United States is a legal case concerning former President Donald Trump’s handling and retention of classified documents after leaving office, including his refusal to return them upon request. The case involves issues of executive privilege, national security, and adherence to the Presidential Records Act.
[5] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85, 10 December 1984.
[6] Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2007), 38.
[7] Ibid, 38.
[8] Karl, Marx A Contribution to the Critique of Political Economy. Translated by S.W. Ryazanskaya. Moscow: Progress Publishers, 1977, 21.
[9] UN (Office of the High Commissioner for Human Rights), Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies, United Nations Voluntary Fund for Victims of Torture. 2009.
[10] Barbara Harlow, “Speaking From The Dock.” Callaloo 16, no. 4 (1993), 886.
[11] Barbara Harlow, “Tortured Thoughts: From Marshall Square to Guantanamo Bay.” Biography 32, no. 1 (2009), 41.
[12] Barbara Harlow, ‘Extraordinary renditions’: tales of Guantánamo, a review article. Race & Class, 52(4), 2011, 4.
[13] U.S. Congressional Research Service. The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens, (RL32276, April 2006).
[14] 18 U.S.C. §§ 2340-2340A
[15] David, The Torture Memos.
[16] U.S. Senate. Senate Select Committee on Intelligence Committee. 2014. Central Intelligence Agency’s Detention and Interrogation Program together with Foreword by Chairman Feinstein and Additional and Minority Views. (S. Rpt. 133-288). Washington: Government Printing Office, 19.
[17] Ibid, 19.
[18] Letta Tayler and Elisa Epstein, “Legacy of a Dark Side: Torture in Twenty-First Century,” Human Rights Watch, 2022.
[19] Ibid.
[20] Barbara Harlow, “Resistance Literature Revisited: From Basra to Guantánamo,” Alif: Journal of Comparative Poetics, no. 32 (2012), 26.
[21] Barbara Harlow, (2015). The General: the ordinary man who challenged Guantanamo and Sketching Guantanamo: court sketches of the military tribunals 2006-2013. Race & Class, 56(3), 122.
[22] 42 U.S. Code Chapter 21D – DETAINEE TREATMENT
[23] Congressional Record Volume 161, Number 96, June 16, 2015, ihttps://irp.fas.org/congress/2015_cr/sen-torture.html
[24] Christina Manduley, “Sen. Tom Cotton: Waterboarding Isn’t Torture,” CNN, 2016.
[25] Trump v. United States, 603 U.S. (2024)
[26]Jasmine Lee, “How Supreme Court Immunity Decision Affects Trump Legal Case,” NPR, July 8.
[27] Alec Tyson, “Americans Divided in Views of Use of Torture in U.S. Anti-Terror Efforts.” Pew Research Center, 2017.