Title: Part II: (Un)Accountability for Torture

Public Reputational Accountability Gaps and Failures

“The category of public reputational accountability,” Keohane asserts, “is meant to apply to situations in which reputation, widely and publicly known, provides a mechanism for accountability even in the absence of other mechanisms.” The effectiveness of public reputational accountability, in particular, has floundered because of the fact that the U.S. public’s views have shifted since the inception of the torture program. Even while recognizing that enhanced interrogation techniques are now against the law, former CIA director Michael Hayden defended the Agency’s past use of the techniques in 2014, claiming that “we thought we were doing the nation’s will.” Today, though, it can be argued that the absence of public reputational accountability stems from the fact that the issue of torture has been reframed in the public imagination.

Public opinion is difficult to measure, yet it is critical for understanding this accountability gap. A December 2011 Pew Research Center poll revealed that 53 per cent of Americans believe torture can be often or sometimes justified, compared to 42 per cent who say it can rarely or never be justified. These results represent a reversal of opinion from the first time Pew gathered information on the subject in 2004. In that poll, 53 per cent of respondents said that torture could rarely or never be justified versus 43 per cent who said it could often or sometimes be a legitimate tool. An even more recent December 2014 Washington Post poll confirmed this change of opinion. In it, 58 per cent of respondents declared that torture could be often or sometimes justified compared to 39 per cent who said it could be rarely or never justified. Despite the initial outcry from the U.S. public when photos emerged from Abu Ghraib and when stories like those of Seymour M. Hersh surfaced in The New Yorker, public opinion on the topic of torture had clearly shifted by at least 2009.

What caused this shift in public opinion regarding torture by 2009? One explanation is a change in the way in which it has been framed. Since 9/11, news media nationwide jumped to cover all aspects of al-Qaeda, from the group’s origins to its organizational structure to trying to track down Osama bin Laden. Politicians, too, have run on campaigns asserting how they planned to defeat al-Qaeda and, later on, the Islamic State in Iraq and Syria (ISIS). This increased coverage likely desensitized the public to terror and counterterror issues writ large. Take President Trump, for example, who seemed to support Gina Haspel because of her role in the CIA’s program, not despite it. In a May 7, 2018 tweet, for instance, President Trump exclaimed, “my highly respected nominee for CIA Director, Gina Haspel, has come under fire because she was too tough on Terrorists. Think of that, in these very dangerous times, we have the most qualified person, a woman, who Democrats want OUT because she is too tough on terror. Win Gina!” The language President Trump uses when speaking about torture demonstrates a clear attempt to frame the practice in a way that makes it acceptable to the American people. When a person is exposed to a particular idea consistently over a long period of time, studies show that they become more likely to accept that idea—a phenomenon called the framing effect. It might be too soon to accurately examine the broader implications of comments like these, but it is likely that this attitude may extend to his supporters.

Going further back, some have argued that the shift in public opinion on the torture program is due to the increasingly partisan atmosphere that characterized the Obama presidency. In fact, as illustrated above, a majority of U.S. citizens opposed torture during the Bush administration and a public majority in favor of torture did not appear until six months into the Obama presidency, meaning that torture may have shifted to become a partisan symbol, something akin to a certain toughness on national security matters. More recent polling conducted by the Pew Research Center in the weeks before the 2016 presidential election supports this argument. While the 4,265 adults polled were almost evenly split as to whether torture was acceptable under certain circumstances for counterterrorism purposes or never acceptable at all (with a slight 49 to 48 per cent advantage to the latter), many more Republicans polled supported torture than did Democrats. Over two-thirds (71 per cent) of Republicans and Republican-leaning Independents said that torture is acceptable in some circumstances, whereas 67 per cent of Democrats and Democratic-leaning Independents said there are “no circumstances under which it is acceptable.” These figures demonstrate that public support for torture is likely deeply divided along partisan and ideological lines.

The late Senator John McCain, however, argued that the reason for the close margin of public opinion on the issue of torture could be attributed to the public not understanding what the coercive acts truly entailed. As a result, he would frequently describe to constituents what sleep deprivation and waterboarding actually looked like. The introduction of even basic facts—like the narratives that emerged from Guantánamo—is significant in shaping public views in such a way that mitigates the effects of party affiliation.

Fatigue also serves as an explanation. After the early opposition to the torture policies, people may simply have moved on from this moment in American history and are now returning to their initial levels of support for torture. If this is true, many Americans’ past strong anti-torture stances may have been the exception, rather than the rule. With secrecy—and years removed from the initial abuses—the public’s opinion has clearly changed.

Why is the Issue of Accountability Especially Important Now?

Without measures of accountability, the United States will neither learn from the past mistakes it made in the realm of detainee handling, nor will it be able to truly move forward from this experience. Viewed in the context of public attitudes toward torture, it is also unrealistic to say that its use is a relic of the past. As long as the debates over international law and the balance between security and liberty remain lively, and as long as a significant portion of Americans believe torture can be justified, there will always remain the possibility that actors with access and influence will contest the norms and laws around the humane treatment for detainees.

Now, the current status of the normative regime around detainee treatment is especially in flux as the Trump administration seems to revel in the defiance of norms of all stripes. President Trump has, far from signaling a desire to reckon with the torture program, actually expressed interest in returning to the abusive practices of the past with such statements as the need to fight “fire with fire.” The language he uses bears testament to these efforts.

Thus, though wide and deep accountability measures were imposed, the public itself failed in its accountability role. As a result, a more comprehensive reckoning into past abuses did not occur, and the norms ensuring humane detainee treatment in U.S. custody were ultimately weakened. This failure on a micro-level confuses individuals on the front lines as to the appropriate standards of detainee treatment. On a macro-level, the absence of accountability calls into question the U.S. position as a moral leader, particularly in the realm of international humanitarian law. The lack of accountability for the authors of the program sends the message to both the U.S. public and the international community that those most responsible for the heinous acts of torture committed in the name of U.S. national security went unpunished for their actions. Ultimately, even though the Bush administration’s worst abuses were checked, the issues underlying them remain open to reinterpretation.

The U.S. public signaled in 2016 that pinpointing culpability and assigning punishment for the torture program was not a high priority—a significant statement given that the most significant measure of public accountability is expressed through elections. In the end, the obstacles to a comprehensive reckoning with past abuses were neither leadership in Congress, nor an absence of good options. Substantial, though not comprehensive, accountability measures were indeed imposed within and across the government. Without significant public demand, however, true accountability for the torture program remains incomplete—a situation that, more than being a stain on the United States’ moral scorecard, poses a legitimate national security threat.

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Professor Elizabeth Grimm Arsenault is an Associate Professor of Teaching in the Security Studies Program in the School of Foreign Service at Georgetown. She was presented with the Dorothy Brown Award in 2012 by the Georgetown University Student Association on behalf of the undergraduate student body and also received the School of Foreign Service Faculty of the Year Award in 2012. She is the author of How the Gloves Came Off: Lawyers, Policy Makers, and Norms in the Debate on Torture.