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Today's Must Read
We've been down this road before, first with the 2005 Detainee Treatment Act and then with this summer's executive order on interrogations. And, like water seeking its own level, each time the Bush administration faces some kind of legal obstacle to torturing terrorism detainees, it finds a way to circumvent it. Even so, Congress is prepared to pass yet another ban on CIA torture techniques, the AP reports.
House and Senate negotiators working on an intelligence bill have agreed to limit CIA interrogators to techniques approved by the military, which would effectively bar them from using such harsh methods as waterboarding, congressional aides said Wednesday.Members of the House and Senate intelligence committees decided to include the ban while working out differences in their respective bills authorizing 2008 spending for intelligence programs, according to the aides, who spoke anonymously because the negotiations were private. Details of the bill are to be made public Thursday.
That will set the stage for another veto fight with President Bush, who last summer issued an executive ordered allowing the CIA to use "enhanced interrogation techniques" that go beyond what's allowed in the 2006 Army Field Manual.
The Army field manual is compliant with the Geneva Conventions, the Constitution, and the laws of the United States of America. Waterboarding and the other potentially-banned tortures are not. Three guesses on which the Bush administration will choose.
From a not-yet-online piece from Congressional Quarterly, the White House proclaims that torture, and only torture, can keep your children safe:
And White House spokesman Tony Fratto issued a statement saying, "if that provision is in the bill, it would make a bad bill worse. We had a veto message on a similar provision in the House's supplemental funding bill. The CIA program has provided valuable, actionable intelligence that has allowed us to find and capture terrorists and prevent attacks. Efforts to weaken this program are dangerous and misguided."
As the AP notes, CIA director Mike Hayden has (euphemistically) defended torturing detainees. Attorney General Michael Mukasey has pleaded ignorance on whether waterboarding is torture. In an interview with TPMmuckraker on Monday, Sen. Sheldon Whitehouse (D-RI) pledged to press Mukasey on the legality of waterboarding every time Mukasey testifies to the Senate Judiciary Committee. With the White House spending more energy defending its God-given right to torture than it spends, say, finding Osama bin Laden, prepare to see this sorry spectacle again and again over the next fourteen months.
Comments (14)
BT wrote on December 6, 2007 9:49 AM:Big deal. Ban torture by the CIA, military, whomever. POTUS will just issue a signing statement reserving the right to use unspecified interrogation techniques and outsource torture to another nation.
TheraP wrote on December 6, 2007 10:09 AM:As long as you have a dictator with "signing statements," who doesn't obey the law... no amount of laws will really make a difference!
Egypt Steve wrote on December 6, 2007 10:29 AM:It's a big mistake to pass any laws at this time declaring waterboarding or any other torture technique to be illegal -- unless the law explicitly states that it reaffirms existing law. There must be no grounds for persons to argue that waterboarding was legal in the past -- CIA torturers, military and DOJ lawyers, and the president himself, must be subject to prosecution for the war crimes, and they must not be able to plead any sort of ex-post-facto defense.
Garrigus Carraig wrote on December 6, 2007 10:44 AM:I agree with Egypt Steve here. Cherry-picking torture techniques to ban statutorily seems to obfuscate matters of precedent. Waterboarding is already illegal. -- IANAL; maybe someone can posit a counter-argument.
adyacent wrote on December 6, 2007 11:09 AM:You know, I also sometimes think passing these laws are an exercise in futility because the he comes and vetoes them. But these laws have one virtue. They put him on the record violating over and over the Constitution and all sorts of international laws. When a new administration comes (hopefully democratic) the only thing we need is a good memory, patience, and for example, joining the international court. I take example of what happened in Latin America. It took many years to take the likes of Pinochet and Videla to task. But it was done. I don't necessary put GWB in that category (but close enough, close enough), but I don't think we should let an American president to get away with things like torture and pre-emtive war. It may take time and patience, but the thing we should not do is to forget.
RobbyLove wrote on December 6, 2007 11:14 AM:Unless laws are rigorously enforced they aren't worth the paper they're written on. This is political theater.
TheraP wrote on December 6, 2007 11:24 AM:When there are so many more important laws that are not on the books, they shouldn't waste time on things that are already illegal.
redford wrote on December 6, 2007 12:36 PM:Are any of us attorneys? We all seem to have come to the same conclusion, yet, don't practice law. Speaking for myself, it was just paying attention to my instinct, knew something about it smelled badly, then thought it through to conclude, if we pass something now which says waterboarding et al are illegal, prior crimes would be considered out of play.
So we have to conclude, the Ds are rolling-over again and playing nice with the Bush criminals. I so want to believe in and support our Democratic leaders, but I'm really sick of their weak-knee'd approach. Harry Reid's soft-spoken nature is the last thing our party needs now. We need a loud, gravely in-your-face leader with a passion for liberalism. The Rs are down and we have a leader who is willing to give them a hand-up, brush 'em off and give them a comfy chair.
Stephen Soldz wrote on December 6, 2007 1:25 PM:Harry, don't pass a bill which re-states the obvious!
Spencer, I admire your work. But I do disagree with your assertion: "The Army field manual is compliant with the Geneva Conventions, the Constitution, and the laws of the United States of America."
While the Army Field Manual is a decided advance over previous military practice and current CIA "enhanced techniques" practice, the Army Field Manual, in appendix M, allows isolation for up to 30 days, renewable. Isolation is the core technique of the DDD -- debility, dread, dependency -- model of psychological torture developed by the US government. There are other techniques involving the exploitation of detainee fears, in the AFM that may violate Geneva and are questionable ethically.
The waterboarding debate, while disturbing in its insights into Bush administration thinking, is not really central. Most sources believe that the President did NOT reauthorize waterboarding last July and it is not in use.
Thus, while restricting the CIA to the Army Field Manual would be a decided advance, we should not rest there. The AFM must be modified to remove Appendix M allowing isolation and there needs to be careful discussion on certain other techniques. Human rights groups have been pushing DoD to revise the AFM. We must keep the pressure up.
S Ticky wrote on December 6, 2007 3:21 PM:"...like water seeking it's own level"
Gene wrote on December 6, 2007 3:34 PM:You lil m'raker, you.
Here is your Devil's advocate: Waterbaording is not expressly illegal. Yes, it has been the subject of numerous prior prosecutions, but more recent legal opinions (agreeably stupid ones) have called the basis for those prosecutions into question (that waterboarding does not contitute torture or cruel and degrading treatment). Accordingly, it is appropriate to make it clear that waterboarding is torture. If waterboarding remains torture under other statutes, then those guilty of it may be prosecuted under both the new statute and the prior treaties and laws. Expressly making waterboarding torture makes it impossible to continue its use in the future irrespective of prior legal opinions (it is no longer subject to debate that waterboarding is torture under U.S. law). I can't say I agree with this rationale, but it sure would put any debate as to legality (based on "it does not rise to the level of torture" to bed).
Utopia wrote on December 6, 2007 9:25 PM:"The CIA program has provided valuable, actionable intelligence that has allowed us to find and capture terrorists and prevent attacks."
So would a program that had the CIA shoot to death a detainees children right in front of them. But that wouldn't make it moral or legal. Justifying any program only by whether it produces results is simply repugnant.
U
kai wrote on December 6, 2007 10:07 PM:I have been doing research on this issue, and it seems clear to me that most people (including many members of Congress) are in the dark about the legal status of waterboarding and other harsh interrogation techniques. Here are the facts as I understand them. Waterboarding and any number of other forms of torture and abuse are no longer criminal under the War Crimes Act (WCA) because of the amendments to that act made by the Military Commissions Act. Prior to those amendments, Bush and his friends at the CIA had committed war crimes under the WCA, but because the amendments to the WCA apply retroactively all the way back to 1997, it is no longer true that Bush et al. have committed war crimes (under the WCA). Granted, waterboarding, etc., still violates the Geneva Conventions, but that doesn't make the use of such techniques by civilians criminal under U.S. law. Such techniques, if committed by U.S. soldiers, are criminal under the Uniform Code of Military Justice (UCMJ), but the UCMJ doesn't apply to civilians, whether in the Whitehouse or the CIA. So do we need a new law? Yes, we need to make techniques such as waterboarding criminal again. I haven't seen the legislation being considered right now, but my worry is that the proposed law would ban but not criminalize the kinds of techniques in question. A mere ban is too weak.
Nell wrote on December 7, 2007 7:41 AM:"The Army field manual is compliant with the Geneva Conventions"
Would that this were so. Sadly, under this regime, it has been revised to include torture techniques including isolation and sleep deprivation.
An appendix to the new AFM for interrogation allows separation, with forced wearing of goggles and earmuffs, for up to 30 days (and more if approval is given), and limiting sleep to four hours a day, for 30 days.
Too many U.S.ians fail to understand these and other "no-touch" tortures as torture, but this failure does not make sleep deprivation and sensory isolation acceptable under the Geneva Convention.
I recommend to all, including the author of the post, Alfred McCoy's book 'A Question of Torture'. The CIA spent decades researching and developing torture techniques, and McCoy cites evidence that the psychological tortures have the most damaging aftereffects on survivors.