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:


(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.

FILED UNDER: 2008 Election, Congress, Intelligence, Law and the Courts, National Security, , , , , , , , , , , , , , , , , , , , , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.


  1. Zelsdorf Ragshaft III says:

    What, Alex, you think the Geneva convention should apply to terrorists who plan to blow you up? First waterboarding is not torture in the classical sense. Look up torture in the dictionary. Liberals define words to meet their needs just as they redefine history to thier likeing. Bush will veto the bill which will be sustained by the minority in the Senate. Why would anyone limit what the President can do to defend this country? Anyone worth the oath of office would insist in timely intelligence gathered from those who would harm us in a timely manner. If they knew their was an nuclear device in the city you and your children live in, I wonder how you would feel about this subject.

  2. Maniakes says:

    Maybe there was something in the other 326 sections of the bill that McCain didn’t like?

  3. DL says:

    One has to admire those who value human dignity enough to consider all of our actions against enemies -to do otherwise is to invite becoming like the evilest despots of history. But,it would have so much more validity if these weren’t so many of the same people who refuse to provide adequate defense for the innocent humans of our nation, and also many of the same people who don’t value the dignity of human life in their eagerness to abort and experiment on the most innocent unborn humans.

  4. Tano says:

    McCain will never live this down.
    Well, at least not till Nov. 5.

  5. Hal says:

    But enough congressional votes wind up coming down to matters of arcane procedure that they’re hard to unravel.

    Keep hope alive, James. Keep hope alive.

    I figure you’re gonna need to be doing a lot of this “explaining” by the time Nov 5 rolls around.

  6. James Joyner says:

    I figure you’re gonna need to be doing a lot of this “explaining” by the time Nov 5 rolls around.

    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 switch positions now that he’s got the nomination wrapped up and it now appeals to the swing voters he’ll need in November.

  7. Hal says:

    It would be odd, to say the least, to suddenly switch positions now that he’s got the nomination wrapped up and it now appeals to the swing voters he’ll need in November.

    Keep spinning, James. As Kevin Drum points out, McCain clearly knows what he has to do to shore up the rather angry and unconvinced base of the Republican party. I give you full marks for your ability to ignore the obvious, but regardless of whether he technically has enough votes to “wrap up” the nomination, you’d have to be deaf and blind to not notice the rather large number of discontents within the Republican ranks.

    And this statement of yours, it now appeals to the swing voters he’ll need in November. ??? Torture appeals to the swing voters? In what reality do you live in? If you really believe that by weaseling on torture McCain is appealing to swing voters, I guess you mean the swing voters within his own party.

    I attended Frank Luntz’s dial group of 30 undecided — or sort of undecided — Republicans in St. Petersburg, Florida, last night…and it was a fairly astonishing evening. Now, for the uninitiated: dials are little hand-held machines that enable a focus group member to register instantaneous approval or disapproval as the watch a candidate on TV.

    ….When John McCain started talking about torture — specifically, about waterboarding — the dials plummeted again….Down to the low 20s, which, given the natural averaging of a focus group, is about as low as you can go. Afterwards, Luntz asked the group why they seemed to be in favor of torture. “I don’t have any problem pouring water on the face of a man who killed 3000 Americans on 9/11,” said John Shevlin, a retired federal law enforcement officer. The group applauded, appallingly.

    As Kevin points out, McCain needs those pro-torture votes in the Republican base that are rather pissed off with him. He knows which side of his bread is buttered…

    Still, keep the spin up James. Practice makes perfect.

  8. davod says:

    Next, the CIA will be dissolved in favor of a much expanded State Department.

    The diplomats will use their skills to sweet talk all they come in contact with so there will be no possible chance that anyone would want to attack the US. Kumbaya.

  9. Hal says:

    See? I rest my case.

  10. Alex Knapp says:


    Getting rid of the CIA might not be a bad idea. You should check out Legacy of Ashes by Tim Weiner.

    Also, the State Department’s intelligence service was the only one that was correct about Iraq not possessing WMD and about Hussein not having any significant links to al-Qaeda.

  11. DL says:

    One does have to wonder how much sweet talking those captured victims tried before their heads were cut out off.

    Real torture is watching liberals(in either party) slowly destroy this country with their nihilistic secular religion.

  12. Hal says:

    See? The Republicans don’t have a pro torture base that needs to be appeased. This simply comes down to matters of arcane procedure that they’re hard to unravel.

    As I said James, you’re going to get a lot of practice between now and Nov 5.

  13. Grewgills says:

    So, would you say McCain was for prohibiting torture before he was against it?

    It’s not so fun when the flip flop is on the other foot.

  14. Steve Plunk says:

    At last instead of congressional grandstanding on this issue we have some leadership. If they opposed these techniques they should have passed this bill years ago instead of hogging the TV cameras complaining.

    With clear definitions in place those in charge of interrogation will have the guidance needed to do their jobs. No more guessing or relying on competing legal theories.

    I hope the President signs this bill. It’s not that I necessarily agree with it but it serves the country well to know what the rules are.