WASHINGTON — In the first few months of Donald J. Trump’s presidency, if recent history is any guide, intelligence officials will meet to discuss a terrorism suspect living abroad. This suspect might become the next target for the nation’s not-so-secret drone force. Or maybe, Mr. Trump’s advisers could decide, he is worth trying to capture.
Under President Obama, security officials have followed a familiar script once they have taken someone into custody. They ask an allied country to conduct the interrogation, or instead question the suspect aboard an American warship using military interrogation techniques, then turn him over to the Justice Department for prosecution in a civilian court inside the United States.
Mr. Trump campaigned on a promise to bring back waterboarding, a banned method previously used by C.I.A. interrogators, and allow unspecified practices he called “a hell of a lot worse.” The president-elect said in an interview last week that he had heard compelling arguments that torture was not effective, though it is not clear whether he intends to retreat from his position.
If he moves ahead to fulfill his campaign pledge, it will not be easy. Federal law, international pressure and resistance from inside the C.I.A. stand in his way. Even if he overcomes those obstacles, the toll of America’s agonizing treatment of captives has left a legacy of harm that will make it harder for Trump administration lawyers to justify resuming use of the tactics.
Dozens of prisoners developed persistent psychological problems after enduring torture and other brutal interrogation tactics in secret C.I.A. prisons or at the military detention center in Guantánamo Bay, Cuba, The New York Times has reported. In authorizing waterboarding, dousings with ice water, sleep deprivation and other techniques more than a decade ago, government lawyers reasoned that there would be no lasting damage to prisoners, a key factor in concluding the tactics did not qualify as torture.
That argument would be difficult to make now, according to lawyers and former intelligence and other government officials.
“The entire legal landscape has changed,” said Daniel Jones, a former F.B.I. analyst and the primary author of a 2014 Senate report that condemned so-called enhanced interrogation techniques and found them ineffective in producing intelligence. “The publicly known facts now are just too conclusive and widely known,” he added, “to call for a return to waterboarding.”
Alex Whiting, a Harvard Law School professor and former war crimes prosecutor, said much has changed since 2002, when Justice Department lawyers accepted C.I.A. assurances that there would be no long-term consequences for prisoners. “Evidence showing that the techniques employed by U.S. officials after 9/11 resulted in lasting psychological trauma will make it much more difficult for future lawyers to sanction these techniques as not amounting to torture,” he said.
Even lawyers and former senior officials who supported the interrogation program years ago now say the obstacles are too great. “Restarting this would be extraordinarily difficult,” said John Rizzo, who served as the C.I.A.’s top lawyer during much of President George W. Bush’s administration.
Mr. Obama, in one of his first acts as president, issued an executive order banning many of the harshest interrogation techniques and prohibiting the C.I.A. from running secret prisons. Mr. Trump would need to rescind that executive order as a first step.
That would allow the C.I.A. to once again open secret prisons overseas. The interrogation tactics, though, would still be limited. Congress overwhelmingly enacted a law last year that allowed American interrogators to use only those techniques authorized in the Army Field Manual, which does not include harsh coercive methods.
Trump administration lawyers could try to get around that prohibition by arguing that the president has broad constitutional power as commander in chief to decide how to interrogate prisoners and that Congress cannot tie his hands. That claim served as the foundation of the Bush administration’s torture program, even though many legal specialists later denounced it as going too far.
Mr. Trump could also order the Defense Department to revise the Army Field Manual to authorize harsher techniques. “If the order comes down the chain of command in the Pentagon to revise that document and add in an opening to use enhanced-interrogation techniques, what prospect would there be for resistance to that decision?” said Robert M. Chesney, a professor at the University of Texas School of Law. “That’s a moral and ethical and political choice.”
Such a change would almost certainly set up a showdown with Congress about the law’s intent. When lawmakers passed it last year, they required a periodic review of the field manual to ensure that interrogations “do not involve the use or threat of force.”
Any such efforts to allow use of brutal treatment would mean taking on Senator John McCain, who was subjected to horrific abuses decades ago as a prisoner of war in North Vietnam and has been an outspoken opponent of any American use of such treatment. Mr. McCain, Republican of Arizona, has pledged since the election to stop Mr. Trump from trying to circumvent congressional anti-torture restrictions. “I don’t give a damn what the president of the United States wants to do, or anybody else wants to do. We will not waterboard,” Mr. McCain said. “We will not torture.”
Senator Jack Reed of Rhode Island, the highest ranking Democrat on the Senate Armed Services Committee, said in an interview that he and Mr. McCain, the committee’s chairman, are confident that the statutory restrictions on the use of torture are strong. “The chairman and myself have made it very clear our position, and we feel we have the law with us.”
Even if Mr. Trump could find a legal workaround to this law, he would have to address international treaties requiring humane treatment of prisoners. When it established the interrogation program, the Bush administration relied in part on theories that those treaties did not apply to American conduct in overseas prisons. But legislation in 2005 and 2006 and a landmark Supreme Court ruling in 2006 tightened that potential loophole. Still, Mr. Trump’s lawyers could revive the Bush era claims of executive power to bypass treaty constraints.
Other obstacles also stand in the way of a new C.I.A. interrogation program. The fallout from the old program took a personal toll on senior C.I.A. officers who were subjected to years of investigations and worried about criminal prosecution. The opposition to a return to brutal methods is so strong at the agency that Michael Hayden, a former C.I.A. director, says Mr. Trump should “bring his own bucket” if he wants to bring back waterboarding, which induces the sensation of drowning.
Mr. Trump will also find health professionals far more reluctant to participate than they were years ago, when psychologists helped develop tactics for interrogations and supervised sessions. In 2015, the American Psychological Association banned involvement by psychologists in national security interrogations. The American Medical Association and the American Psychiatric Association have strict anti-torture prohibitions.
At the Pentagon, a medical ethics task force last year recommended new rules that would allow American military health care personnel to avoid involvement in activities like interrogations that violate their conscience or the ethical standards of their professions.
The rules have not yet been formally accepted and put into place, said Adil E. Shamoo, a professor at the University of Maryland School of Medicine and chairman of the medical ethics subcommittee for the Defense Department’s health advisory board. But the recommendations nonetheless reveal the depth of the opposition to a return to the use of torture.
“The view of the medical profession is so clear now,” said Leonard Rubenstein of the Berman Institute for Bioethics at Johns Hopkins University. “There is no ambiguity anymore about what the rules are.”
Mr. Trump would most likely also find it harder to find international partners willing to host secret prisons. Criminal investigations were conducted in Poland and Lithuania over secret C.I.A. prisons there. And while the inquiries did not lead to prosecutions, they could have a chilling effect on future cooperation. Italian prosecutors won convictions in absentia of more than 20 Americans involved in a 2003 C.I.A. abduction of a terrorism suspect from Italy to Egypt for interrogation. A court in Portugal, where one of the Americans lives, ruled this month that she could be extradited to Italy.
A prosecutor with the International Criminal Court announced several weeks ago that there was a “reasonable basis” to open investigations into war crimes of torture and related ill-treatment in detention facilities run by the United States military and the C.I.A. in Afghanistan. While the United States is not bound by the court, Afghanistan is a member, and a lengthy investigation into American actions there could make it much less likely that Afghanistan would allow the C.I.A. to set up secret prisons again.
Nathaniel A. Raymond, director of the Signal Program on Human Security and Technology at Harvard University’s Humanitarian Initiative, said of the C.I.A.: “The location shell game they used before has collapsed.”
In recent years, the Obama administration has used criminal courts in the United States to prosecute those accused of terrorism, convicting a Somali man linked to Al Qaeda, two men fighting for the Shabab, a would-be suicide bomber aboard an airplane and others. Ahmed Abu Khatalla, who is suspected of being the ringleader of the 2012 attacks that killed four Americans in Benghazi, Libya, is scheduled to stand trial in Washington next year.
None of this is to say that, when Mr. Trump has an opportunity to capture a terrorism suspect, he has no choice but to follow Mr. Obama’s script. His administration could start sending prisoners to Guantánamo Bay again, which held close to 700 men at its peak and is now down to 60. While American counterterrorism officials say key foreign partners will not share intelligence or otherwise participate in operations that result in sending prisoners to Guantánamo, nothing would legally preclude it.
After months of telling Americans that he would bring back waterboarding — “Believe me, it works,” he said — Mr. Trump may be reconsidering his stance. In an interview with The New York Times last Tuesday, his only comments on the issue since the election, Mr. Trump said he discussed the matter with James N. Mattis, a retired Marine Corps general who is under consideration for defense secretary. Like most American military leaders, he is opposed to the use of torture.
“I said, ‘What do you think of waterboarding?’ ” Mr. Trump said. “I was surprised. He said, ‘I’ve never found it to be useful.’ He said, ‘I’ve always found, give me a pack of cigarettes and a couple of beers and I do better with that than I do with torture.’ And I was very impressed by that answer.”
But Mr. Trump did not close the door entirely. If Americans feel strongly about bringing back waterboarding and other tactics, he said, “I would be guided by that.”
The New York Times