U.S. Senate Narrowly Bans Torture by CIA (Updated)
In a 51 – 45 vote, the U.S. Senate passed this year’s authorization for intelligence activities. One of the most important provisions of the law this year was Section 327, which states:
SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) Limitation- No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.
(b) Instrumentality Defined- In this section, the term `instrumentality’, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.
This is, of course, precisely what Sen. John McCain was fighting for in 2005 when the Detainee Treatment Act was passed. This Act confirms that CIA and other civilian defense agencies (and contactors) cannot engage in the illegal treatment or torture of prisoners.
John McCain, I should note, is among the 45 Senators who voted against this bill. What a maverick! Not only did he deviate from centuries of American tradition, he’s broken away from his 2005 self!
Also, I should note that neither Barack Obama nor Hillary Clinton had the courage to show up and vote. Surely they could have made it back from Wisconsin and Texas to vote on something as important as this. I guess not.
UPDATE (James Joyner): I’ve read several press accounts and still can’t figure out McCain’s reasoning. IHT:
Senator John McCain, the leading Republican presidential candidate and former prisoner of war who opposes harsh interrogation tactics, voted against the bill. McCain said that the ban would limit the CIA’s ability to gather intelligence but that his vote was consistent with his firm stance against torture.
“We always supported allowing the CIA to use extra measures,” McCain said. “I believe waterboarding is illegal and should be banned.”
A NYT version of the same reporter’s work, though, leads with this:
Senate Republicans generally opposed the bill, but several of them also did not want to cast a vote that could be construed as supporting torture, and so were relying on President Bush to make good on a threat to veto legislation limiting C.I.A. interrogation techniques.
Senate Democrats, sensing an opportunity to highlight a policy dispute between the White House and Senator John McCain, the likely Republican presidential nominee, had been hoping that Republicans would make a procedural challenge to the provision on interrogation methods.
Mr. McCain, a former prisoner of war, has consistently voiced opposition to waterboarding and other methods that critics say is a form torture. But the Republicans, confident of a White House veto, did not mount the challenge. Mr. McCain voted “no” on Wednesday afternoon.
Clearly, McCain’s vote here was not pro-waterboarding. But enough congressional votes wind up coming down to matters of arcane procedure that they’re hard to unravel.
UPDATE (James Joyner): McCain has vocally and consistently worked to limit torture, even though it has been damaging to him politically. It would be odd, to say the least, to suddenly reverse positions now that he’s got the nomination wrapped up and his longstanding position appeals to the swing voters he’ll need in November.
UPDATE (Alex Knapp): John McCain is out and out lying if he truly claims that “We always supported allowing the CIA to use extra measures.” Here’s an article from 2005 about the Detainee Treatment Act.
Warner called it “landmark legislation” and lauded McCain for “staying the course.” McCain, a former POW who was tortured by his Vietnamese captors, has been steadfast in the face of administration pressure to modify his proposal.
The White House had threatened a veto unless the legislation contained an exemption for the CIA. The administration argued the bill would otherwise limit presidential ability to protect Americans from a terrorist attack.
McCain’s initial bill called for banning all U.S. personnel from engaging in “cruel, inhuman and degrading treatment” of detainees. [emphasis added]
The primary difference between the 2005 Act and the one just passed is that the current act also limits the CIA and other civilian agencies to the approved Army interrogation techniques, rather than merely preventing “cruel, inhuman and degrading treatment.” This begs the question of what other techniques John McCain wants those agencies to practice, as even some of the techniques in the Army Field Manual are pushing it.
UPDATE (James Joyner): I’ve now read the full text of McCain’s explanation and it frankly still doesn’t make much sense. Here are the highlights:
During conference proceedings, conferees voted by a narrow margin to include a provision that would apply the Army Field Manual to the interrogation activities of the Central Intelligence Agency. The sponsors of that provision have stated that their goal is to ensure that detainees under American control are not subject to torture. I strongly share this goal, and believe that only by ensuring that the United States adheres to our international obligations and our deepest values can we maintain the moral credibility that is our greatest asset in the war on terror.
Throughout these debates, I have said that it was not my intent to eliminate the CIA interrogation program, but rather to ensure that the techniques it employs are humane and do not include such extreme techniques as waterboarding. I said on the Senate floor during the debate over the Military Commissions Act, “Let me state this flatly: it was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so. At the same time, the CIA’s interrogation program has to abide by the rules, including the standards of the Detainee Treatment Act.” This remains my view today.
When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers. In view of this, the legislation allowed the CIA to retain the capacity to employ alternative interrogation techniques. I’d emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques — indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment.
The conference report would go beyond any of the recent laws that I just mentioned — laws that were extensively debated and considered — by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use. I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA. I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values. What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.
See a “heartbroken” Andrew Sullivan for the rest.
So, McCain opposes torture and believes our military and intelligence agencies alike should behave morally and in compliance with international law. Yet, there’s some measures that he thinks the CIA should be allowed to use but not the Army. What are they? And by what rationale are given “enhanced techniques” moral and legal if performed by the CIA but not the Army? Color me confused.
Kevin Drum thinks the explanation is simple: “[V]oters don’t want a president who opposes state sanctioned torture of captive prisoners. So McCain doesn’t oppose it anymore. Any questions?”
But, as I’ve noted already, McCain knew his position on this was incredibly unpopular with the base and yet he kept hammering away without equivocation despite that throughout this process. He’s all but won the nomination at this point. Why would he suddenly lurch the other way now? Presumably, the non-torture position is going to be more appealing to moderate swing voters.
UPDATE (Dodd): The distinction is clear enough to me. His refusal “to tie the CIA to the Army Field Manual” is directly in line with CIA Director Gen. Michael Hayden’s eloquent explanation of the problem in his Congressional testimony:
[T]here is a universe out there of lawful interrogation techniques that we should feel, as a nation, that we have a right to use against our enemies…. The Army Field Manual describes a subset of that universe. [T]he Army Field Manual does exactly what… it needs to do for the United States Army. But on the face of it, it would make no… sense to apply the Army’s field manual to CIA.
[T]he population of who’s doing it is different than the population that would be working for me inside the CIA interrogation program. It meets the needs of America’s Army in terms of who’s going to do it, which in the case of the Army Field Manual would be a relatively large population of relatively young men and women who’ve received good training but not exhaustive training in all potential situations.
The population of who they do it to would also be different. In the life of the CIA detention program we have held fewer than a hundred people. And… actually, fewer than a third of those people have had any techniques used against them — enhanced techniques — in the CIA program. America’s Army literally today is holding over 20,000 detainees in Iraq alone.
[T]here’s a difference in terms of… the circumstances under which you’re doing the interrogation. And I know there can be circumstances in military custody that are as protected and isolated and controlled as in our detention facilities, but in many instances that is not the case. These are interrogations against enemy soldiers, who almost always will be lawful combatants, in tactical situations, from whom you expect to get information of transient and tactical value. None of that applies to the detainees we hold, to the interrogators we have, or the information we are attempting to seek. [Emphasis added.]
A lot of people have been saying to Congress for months, “Hey, if you think waterboarding should be illegal, stop haranguing witnesses to declare their opinions on the subject and just ban it.” And, doubtless, if Congress proposes a bill that simply bans waterboarding, McCain will vote for it, having opposed the practice longer than most and having been a driving force behind the Detainee Treatment Act. But this bill goes much further than that. That he wouldn’t agree to a much more expansive (and potentially very stupid) bill is not something to fault him for.
No, this looks like just one more example of Reid and Pelosi playing petty politics with vital issues rather than doing something productive. They just rammed through a bill they know is totally unacceptable, all the while knowing that the fine distinctions involved will get lost in a sea of “McCain Votes To Allow Waterboarding!!!!oneone!! eleven!!!” hyperbole.