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A Bipartisan Group of US Senators Would Like to Re-Ban Torture Again

An amendment to the National Defense Authorization Act introduced Tuesday would make permanent an executive order President Obama signed in 2009.

by Jason Leopold
Jun 9 2015, 11:15pm

Photo via EPA

Six months after a Senate committee released a damning report that described in horrific detail how the CIA tortured "war on terror" detainees at black-site prisons, a bipartisan group of powerful lawmakers introduced legislation reaffirming the ban on torture.

The seven-page amendment [pdf below], introduced Tuesday and sponsored by senators John McCain, Dianne Feinstein, Jack Reed, and Susan Collins, will be included in the Defense appropriations bill known as the National Defense Authorization Act (NDAA) and mandate that interrogations of individuals conducted by agencies such as the FBI, CIA, and Department of Defense strictly adhere to the Army Field Manual.

The lawmakers did not issue statements about the introduction of the amendment. Spokespeople for the senators did not respond to requests for comment.

Related: Senator Dianne Feinstein Proposes Legislation to Make Torture Extra Illegal

There are already laws on the books in the US that prohibit the use of torture. But the McCain-Feinstein amendment would specifically prohibit the use of violence and coercive techniques to extract information from individuals detained in an armed conflict. It would make permanent an executive order President Barack Obama signed after he was sworn in as president in 2009 that banned waterboarding and other so-called "enhanced interrogation techniques," and the CIA's longterm detention of detainees.

The amendment calls for the US government to immediately contact the International Committee of the Red Cross (ICRC) when an individual is detained and to grant the organization access to the prisoner. At a June 17, 2004 press briefing, then-Defense Secretary Donald Rumsfeld admitted that at the request of then-CIA Director George Tenet, he authorized the US military to hide an Iraqi prisoner from the ICRC and other organizations that monitor the treatment of prisoners.

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Currently, when the US detains a terrorism suspect, the captive is interrogated by the so-called High Value Interrogation Group, or HIG, which Obama established in 2009. It's made up of intelligence officials from the departments of State, Defense, and Homeland Security, along with the CIA and FBI. The HIG also adheres to the Army Field Manual during interrogations. The manual permits the use of "rapport building" techniques, incentives for cooperation, the "good cop, bad cop" routine, manipulating a detainee to disclose more information, and threatening the captive with legal consequences for failing to cooperate.

The McCain-Feinstein amendment dictates that the HIG be required to submit a report to the secretary of defense, the director of national intelligence, the attorney general, and others on "best practices" for obtaining "reliable and voluntary" statements from captives that do not involve the use of force.

"The amendment is long overdue," Mark Fallon, a veteran interrogator and an outspoken critic of the use of torture who chairs the HIG research committee, told VICE News. "A universal standard [for interrogations] across all agencies is required. We want to make sure we take torture off the table — it's illegal and something we should never consider again."

Fallon, who said he met with several members of Congress Tuesday to discuss the anti-torture bill and why enacting it is critical to US national security, said there are two unique aspects to the amendment.

'The amendment actually mandates and advocates the use of science and evidence-based research so we can be more effective during interrogations.'

"One is the fact that it will require a review of the Army Field Manual to ensure we are only using best and lawful techniques," he said. "Second, it actually mandates and advocates the use of science and evidence-based research so we can be more effective during interrogations."

Fallon formerly served as the deputy commander of the Criminal Investigation Task Force at Guantanamo. According to a 2008 investigation into the treatment of detainees by the Senate Armed Services Committee, Fallon responded in a 2002 email to a discussion between a CIA lawyer and a military lawyer about the use of torture techniques at the detention facility.

"This looks like the kinds of stuff Congressional hearings are made of," Fallon wrote. "Someone needs to be considering how history will look back at this."

Feinstein first raised the idea for a new anti-torture bill in late December in a letter she sent to Obama weeks after the committee she formerly chaired, the Senate Intelligence Committee, released an executive summary about its five-year investigation into the CIA's torture program. Some of the proposals Feinstein had called for last December, such as the videotaping of interrogations, did not make it into the amendment.

While the amendment would establish the Army Field Manual as the sole rulebook for interrogations, the manual, as currently written, authorizes the use of techniques — notably sleep and sensory deprivation — that the United Nations Committee Against Torture recently condemned as constituting "torture or ill-treatment."

One way the McCain-Feinstein amendment appears to resolve that issue is by requiring the Army Field Manual to be thoroughly reviewed and revised to ensure it "complies with the legal obligations of the United States" designed to "elicit reliable and voluntary statements that do not involve the use or threat or force." Any changes to the manual must be disclosed publicly, the amendment stipulates.

Katherine Hawkins, a national security fellow with the transparency group OpenTheGovernment, told VICE News that the Army Field Manual, "as it is written now, clearly forbids the worst abuses by the CIA."

"But its Appendix M is deeply flawed," she continued. "I think senators McCain and Feinstein were wise to require that it be updated to forbid all forms of coercion — and to require that it remains public after any updates."

Numerous human rights and civil liberties groups lauded the introduction of the anti-torture amendment in a statement Tuesday, calling it a "vital and welcome step toward ensuring that the United States never again uses torture."

"We applaud senators McCain and Feinstein for their tireless, bipartisan efforts to make sure that government-sanctioned torture and cruel treatment are relics of the past," the nonpartisan Constitution Project said in a statement. In April 2013, the group released an exhaustive report on the treatment of detainees in custody of the CIA and US military. "This legislation is a critical step towards that end not only for the additional legal protections it would provide, but also for the message it would send about Congress' commitment to our country never again repeating the interrogation-related abuses of the post 9/11 era. We urge senators to support it."

Related: The Weird Saga of the Other 'Smoking Gun' Torture Report the CIA Still Has Under Wraps

Other organizations said that the legal fix should not be a substitute for accountability for the CIA's previous use of torture against detainees.

"Requiring the CIA and other US agencies to abide by one uniform set of interrogation rules will help prevent torture," said Laura Pitter, senior national security counsel at Human Rights Watch. "But such legal fixes won't carry weight in the future if those responsible for torture in the past aren't brought to justice."

Follow Jason Leopold on Twitter: @JasonLeopold