Amid the flurry of executive orders issued by President Trump during his first week in office, one remains a work in progress. A draft version of the executive order on the “Detention and Interrogation of Enemy Combatants” has been leaked. It is a complex document with many provisions — all appeared designed to make it possible for the Trump administration to return to Bush policy of secret kidnapping, detention and interrogation of suspected terrorists.
Although the Trump administration has publicly backed away from some aspects of the order, Trump’s decision to appoint Gina Haspel — who has been accused of running one of the Bush era secret prisons that tortured inmates — as deputy head of the CIA suggests that Trump continues to be interested in returning to past practices. The mixed signals coming from the administration mean that it is still important to explain what a return of the secret prison system might mean.
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One of the key sections in the draft order requests a “policy review” to: “[R]ecommend to the President whether to reinstate a program of interrogation of high-value alien terrorists to be operated outside the United States and whether such a program should include the use of detention facilities operated by the Central Intelligence Agency.” What would be the consequences of a return to this Bush era approach?
Our research over several years — together with colleagues at the Carr Center for Human Rights Policy at the Harvard Kennedy School — suggests that it will be both difficult and costly to return to Bush era policies. We have written elsewhere about how U.S. use of torture had serious policy consequences. However, even apart from that, the CIA’s extraordinary detention and secret detention programs during the Bush administration had stark consequences for human rights. These consequences — combined with ongoing litigation and political opposition — mean that it will be hard for Trump to revive the secret CIA prison system. Yet if Trump succeeds, the consequences for human rights may be worse than those of the Bush administration’s policy.
This is what happened during the Bush era
From September 2001 until January 2009, the CIA ran a program involving the disappearance, extrajudicial detention, and torture of suspects in the so-called war on terror. According to reports by Senate Select Committee on Intelligence and the Open Society Justice Initiative, the program held at least 119 prisoners and involved the active cooperation of 40 foreign governments, ranging from the Canadian Mounted Police to Somali warlords. These countries’ active collaboration in the program took many forms, including assisting in the abduction and transport of terror suspects, hosting secret prisons, and torturing prisoners on the CIA’s behalf.
Our statistical research — which looked at the repressive behavior of 168 independent countries during the period from 1992 to 2011 — shows that countries that collaborated actively with the CIA got worse on human rights practices in comparison to countries that were not involved. This pattern is especially strong for non-democratic partners of the CIA, and appears consistently across a variety of different ways of measuring human rights.
The graphs below give some idea of what happened over time. Each graph shows a different way of measuring human rights across non-democratic countries that participated in programs with the CIA (the dark line) and non-democratic countries that did not (the dotted one). The higher you go, the better the human rights record. The shaded area in each graph shows the period from 2001-2005 when countries first began collaborating with the CIA.
The results are striking — the non-democratic countries that collaborated with the CIA started to behave differently from the others on human rights issues just around the same time that they began collaborating. In the language of social science, collaboration in the CIA’s secret detention, extraordinary rendition, and interrogation program is “associated with” a significant worsening in the human rights practices of the U.S.’s non-democratic allies. We cannot prove that CIA collaboration caused worse human rights practices, but that interpretation is certainly very plausible. Furthermore, these worsening practices proved to be enduring, not temporary. They did not reverse course after the Obama administration executive order banned torture.
There’s domestic opposition to this happening again
Much has changed since 2001. There are reasons to suspect that the response to Trump’s policies will be different than those of the Bush administration.
The mere fact that the public has access to a draft executive order paving the way for the resumption of the CIA’s rendition, detention, and interrogation program suggests that things have changed. It’s hard to have a clandestine detention and interrogation program if it isn’t actually clandestine. While the Bush administration worked to hide its actions, the Trump administration doesn’t seem to be nearly as good at keeping secrets. It remains to be seen how a not-so-secret secret detention and interrogation program would work.
The political and legal landscape has also changed in important ways. The Trump administration would face significant obstacles within the U.S. to implementing its draft executive order. People in the intelligence and military communities might resist. Michael Hayden, for instance, claimed that the U.S. military would not follow an “unlawful order” from Trump, while the then-director of the CIA, John Brennan, claimed that the “overwhelming majority” of CIA officers would not want to return to the use of waterboarding.
U.S. government officials have good reason to resist implementing Trump’s prospective order. The two psychologists who designed the CIA’s notorious “enhanced interrogations techniques” now find themselves the defendants in a case brought against them by the ACLU on behalf of three of their former victims. Twenty-three other U.S. officials were convicted in absentia for kidnapping an imam in Milan in 2003.
The international picture is more complicated
As we’ve already said, both democratic and non-democratic states collaborated with the earlier U.S. rendition, detention and interrogation program. Today, the picture is more complicated. Some of America’s closest allies present another obstacle to President Trump’s prospective order. The European Court of Human Rights has ruled that Macedonia, Poland and Italy violated the European Convention on Human Rights by collaborating with the CIA program and has ordered these countries to pay damages to their victims. Similar cases are pending against Lithuania and Romania.
These cases establish the precedent that Council of Europe countries are legally accountable for complicity in U.S. enhanced interrogations, secret detention, and extraordinary renditions. Together with the onslaught of national inquiries into U.S. torture, kidnapping and arbitrary detention in Canada, Germany, Italy, Spain, and the United Kingdom, as well as by the European Parliament and the Council of Europe, these cases make it unlikely that the Trump administration will find partners in Europe.
This doesn’t mean that the Trump administration would have no partners if it revived the Bush era policy. It just means that democratic allies are unlikely to help out. Without democratic states willing to aid and abet its policies, the Trump administration would be forced to turn to undemocratic states to find hosts for its secret prisons and partners for the abduction, transport and abuse of suspected terrorists.
So, in short, a Trump administered CIA prison program would face greater public opposition across the U.S. and many of its allies than its predecessor. This means that it will be less likely to succeed in being implemented. If, however, it is somehow implemented, it will be with the help of non-democratic states, not democratic ones. Our research suggests that U.S. use of secret detention, torture and extraordinary rendition can damage government human rights practices the most in precisely those states. If Bush-era policies hurt human rights internationally, Trump-era policies might well have worse consequences.
Averell Schmidt is a fellow at the Carr Center for Human Rights Policy.
Kathryn Sikkink is the Ryan Family Professor of Human Rights Policy at HKS and the Carol K. Pforzheimer Professor at the Radcliffe Institute for Advanced Study.