On Lawfare Jack Goldsmith does not believe the military services nor the CIA will return to torture:
People forget that under the Bush administration, the DOD in 2003 successfully revolted against aggressive interrogation techniques that the DOJ has at the time ruled lawful, and that the CIA interrogation and black site program had basically ground to a halt after 2006 in light of the changes in the law forged by the Detainee Treatment Act and Hamdan. They forget that the CIA refused, after the DTA but before Hamdan, to accept a DOJ interpretation of the DTA that would permit a return to waterboarding. (See pages 119-120 of Power and Constraint.) Hamdan made a return even more perilous. Whatever ambiguity was left concerning the legality of waterboarding and other aggressive interrogation techniques was eliminated by the McCain-Feinstein Amendment to the FY2016 National Defense Authorization Act, which, as Steve Vladeck notes, requires ICRC access to detainees and “limits the techniques that can be used against any detainee either in U.S. custody, under the effective control of the United States, or held in a facility owned, operated, or controlled by the United States, to those ‘authorized by and listed in the Army Field Manual 2–22.3.’”
These are some of the reasons why the Attorney General and Defense Secretary pledged not to return to waterboarding, and why the CIA Director did as well despite some weasel-words.
That was ten to fifteen years ago, so I might not be so sanguine. Still, it’s an interesting post for his emphasis on the nuances which I doubt Trump even knows exists. Here’s an example (which he takes from an earlier publication of his):
Presidential actions do not take place in a vacuum, but rather in a context where they are interpreted based on perceptions about the President’s intentions and trustworthiness. The early Bush administration loudly and proudly proclaimed that it wanted to expand presidential power, and appeared to act on this proclamation in many legal opinions and contexts that scared all of the checking institutions above and led them to push back very hard against Bush in an unprecedented fashion. … [Presidential actions] are not judged in a vacuum. They are judged against a background of beliefs about (among other things) the president’s trustworthiness and commitment to the rule of law. In its first term the Bush administration was (as I argued in The Terror Presidency) unprecedentedly indifferent to these factors, and the checking institutions bit back unprecedentedly hard. Trump is already in a much worse position than was Bush on the trustworthiness score.
Trump’s pack of amateurs and second-raters may play well to his base – but for the professionals both inside and outside the national security apparatus it’s going to be something entirely different. If we start seeing wholesale firings, we’ll know the Trump Administration is unhappy with the responses they’re receiving. However, the judiciary is relatively immune to the Administration, so they may end up being a bulwark against the foolish activities.
