President-elect Donald Trump backs waterboarding and his pick for CIA director has called those who have done it "patriots" not "torturers." Yet a Trump administration faces steep legal and legislative hurdles to reinstate the interrogation practice that simulates drowning.
Under a law approved last year, all government employees, including intelligence agents, must abide by Army guidelines for interrogating prisoners — guidelines that don't permit waterboarding. Those rules are subject to review, but it's not clear if they can be revised to allow the practice.
If the Trump administration were to try to change the law or the guidelines, the effort would run into bipartisan opposition in Congress. The most formidable obstacle there would be a fellow Republican, John McCain. The Arizona senator, who was beaten as a prisoner of war in Vietnam in the 1960s, adamantly opposes waterboarding. As chairman of the Senate Armed Services Committee, he would be well-positioned to block any attempt to revive it.
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McCain has clashed before with Trump, who during the campaign claimed the former Navy pilot wasn't a war hero because he had been captured. At a security conference in Canada last weekend, McCain indicated he was ready to take on Trump again as begins another six-year term after winning re-election.
"I don't give a damn what the president of the United States wants to do or anybody else wants to do," McCain said. "We will not waterboard. We will not do it."
Waterboarding and other harsh methods were used in the aftermath of the Sept. 11, 2001, attacks to try to obtain useful information from terrorist suspects. Many intelligence, military and law enforcement officials say the practice is ineffective as well as immoral. They say it breaks down trust between the suspect and interrogators and often prompts a detainee to say anything to stop the harsh treatment.
But Trump, who revved up his supporters with tough talk against against Islamic State extremists, pledged to interrogate terrorist suspects with waterboarding and a "hell of a lot worse."
"Don't tell me it doesn't work," Trump said. "Torture works, OK folks?"
Trump's nominee for CIA is Rep. Mike Pompeo, a conservative congressman from Kansas who has criticized President Barack Obama for "ending our interrogation program," which Obama did not do. Pompeo criticized the release of the Senate's 2014 report on harsh interrogation of detainees and argued that the CIA program operated within the law.
"Our men and women who were tasked to keep us safe in the aftermath of 9/11 — our military and our intelligence warriors — are ... not torturers, they are patriots," Pompeo said then.
The views of Trump's other nominees are more opaque.
Trump's national security adviser, Retired Army Lt. General Michael Flynn, has not ruled out the use of waterboarding. "If the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits," he told Politico in October.
Trump's pick for attorney general, Sen. Jeff Sessions, R-Ala., was one of a few senators who voted against bipartisan anti-torture provisions in 2005 and 2015. But in 2008, Sessions said: "I am glad we are no longer utilizing waterboarding. I hope we never have to do it again." That was before the rise of IS militants.
And on Tuesday, Trump told The New York Times that he asked retired Marine Gen. James Mattis, a strong prospect for defense secretary, about waterboarding and was surprised to hear Mattis does not favor it.
Waterboarding has been prohibited since 2009. Two days after taking office, Obama issued an executive order prohibiting all government employees from using any interrogation method that wasn't spelled out in the Army Field Manual, a military how-to guide.
Wanting to ensure that no future president could tear up the order, McCain teamed up with Sen. Dianne Feinstein, D-Calif., to turn it into law. Their anti-torture amendment was adopted in a 78-21 bipartisan vote and became law late last year.
The law requires the Army to conduct a review of the field manual every three years in consultation with the attorney general, the FBI director and the director of national intelligence. The first review deadline is Dec. 19, 2017, during Trump's first year in office.
It's not clear if the review could result in changes allowing waterboarding or other harsh interrogation methods.
The best interrogation methods build rapport with suspects, according to the High-Value Detainee Group, a team of the nation's top interrogators who deploy to question detainees around the world. The group recently issued a report on the best interrogation practices, based on the latest behavioral and social science research.
Human rights advocates have long fought against any resumption of harsh interrogation techniques. They say the intelligence community stands firmly against it and point to a comment made this year by former CIA Director Michael Hayden. He said: "If any future president wants (the) CIA to waterboard anybody, he better bring his own bucket, because CIA officers aren't going to do it."