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Senator Dianne Feinstein Proposes Legislation to Make Torture Extra Illegal

In a letter to President Obama, the outgoing chairwoman of the Senate Intelligence Committee outlined steps to prevent the 'future use' of torture.
January 5, 2015, 11:25pm
Photo by J. Scott Applewhite/AP

There are already laws on the books in the US that prohibit the use of torture. But after the Senate Intelligence Committee released a summary last month of its 6,700-page torture report that revealed the CIA subjected some detainees it captured after 9/11 to "rectal rehydration" and "ice water baths," the outgoing Democratic chairwoman of the committee said she will introduce legislation and call for a series of executive actions to ensure the US government never does it again.

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In a letter sent to President Barack Obama December 30 and released Monday, Senator Dianne Feinstein said she put together proposals that will "close all torture loopholes" — she did not identify those loopholes in the letter — and make permanent an executive order Obama signed after he was sworn in as president in 2009 that banned both waterboarding and other so-called "enhanced interrogation techniques," and the CIA's longterm detention of detainees. Her letter contains a list of 11 recommendations on reining in the CIA that she says are supported by the findings and conclusions of her committee's report.

"These recommendations are intended to make sure that the United States never again engages in actions that you have acknowledged were torture," Feinstein said in the letter to Obama. "I believe that several of the Committee's findings should prompt additional oversight and better sharing of information for all covert action and significant intelligence collection programs."

Feinstein wants to ensure that the International Committee of the Red Cross is promptly notified when detainees are captured, and her legislation will call for establishing the Army Field Manual as the sole rulebook for conducting interrogations.

But the Army Field Manual has come under fire because the United Nations Committee Against Torture has condemned some of the techniques — notably sleep and sensory deprivation — as methods that "constitute torture or ill-treatment."

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Feinstein also called for videotaping the interrogations of detainees. The 2005 destruction of nearly 100 videotaped interrogations of two high-value CIA captives was the catalyst behind the Intelligence Committee's four-year investigation into the CIA torture program. The probe concluded that the techniques detainees were subjected to by the CIA did not produce unique or valuable intelligence, meaning information that the CIA would not have been able to obtain through other means.

Ned Price, a spokesman for the White House National Security Council, told VICE News the administration is reviewing Feinstein's "specific recommendations."

"As a general matter, however, we share the Senator's goal of ensuring the techniques that led to those recommendations are never employed again," Price said.

It's unlikely Feinstein's legislation will win the support of the new Republican majority given the fierce partisan disagreements over the findings and conclusions of the Intelligence Committee's torture report. Though the report disputed it, many Republicans believe the CIA's enhanced interrogation program prevented additional terrorist attacks and directly led to the killing of Osama Bin Laden.

It's unclear why Feinstein waited until after Congress adjourned — when Democrats effectively relinquished control of the Senate — to call for reforms. Or why she did not include the recommendations in the 525-page executive summary her committee released December 9.

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Senator Susan Collins, however, offered a clue. The Republican lawmaker said in little-noticed declassified comments she made about the report upon its release last month that the lack of policy recommendations violated the "bipartisan Terms of Reference," which were rules the Intelligence Committee voted on in March 2009 that "describe the purpose, scope, and methodology" of the committee's investigation of the CIA's detention and interrogation program.

"The bipartisan Terms of Reference also called for the production of policy recommendations, but not one is included in the Review's Findings & Conclusions or its Executive Summary. Ironically, it was the CIA, rather than the Committee, that first developed recommendations to address the mismanagement, misconduct, and flawed performance that characterized too much of the CIA's Detention & Interrogation program. I have identified several recommendations that should be implemented as soon as possible," Collins said.

In fact, Feinstein's legislative proposals closely match Collins' own torture reform proposals that the Maine senator highlighted in comments analyzing the Democratic majority's report, such as codifying Obama's 2009 executive order and increasing oversight of CIA covert action programs.

Feinstein's letter to Obama said she supported the CIA's own recommendations the agency proposed in its June 2013 response to the Intelligence Committee's report.

In a statement, CIA spokesman Ryan Trapani said the CIA has "made substantial progress implementing these recommendations," which include the planning and managing of sensitive programs, and "a requirement that internal accountability boards do not focus exclusively on individual misconduct, but look more broadly at any systemic problems."

Andrea Prasow, the deputy Washington director at Human Rights Watch, told VICE News that while Feinstein's measures are admirable, prosecuting officials who authorized torture is the most effective deterrent against its future use.

"Torture is already illegal under US and international law," Prasnow said. "Despite it being illegal, US officials engaged in torture anyway, and other officials provided so-called legal sanction for that abuse. Senator Feinstein's desire to prevent any such legal acrobatics in the future is laudable, though the most effective way to prevent torture from being used in the future is to prosecute those responsible for it now."

Follow Jason Leopold on Twitter: @JasonLeopold