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Published on Thursday, December 4, 2008 by Salon.com

Why Do Feinstein and Wyden Sound Much Different on the Torture Issue Now?

by Glenn Greenwald

Time constraints prevented me yesterday from writing about Dianne Feinstein's comments concerning torture in yesterday's New York Times, in which the California Senator -- who will replace Jay Rockefeller as Chairperson of the Senate Intelligence Committee -- rather clearly backtracked on what had been her repeated, unequivocal insistence throughout the year that the CIA should be required to comply with the Army Field Manual when interrogating detainees.  But Time's Michael Scherer picked up on the same backtracking and did a very good job of highlighting what appears to be Feinstein's (as well as Ron Wyden's) conspicuous, and rather disturbing, reversals.

But it's actually somewhat worse even than Scherer suggests.  According to Mark Mazzetti and Scott Shane, who wrote the article, Feinstein and Wyden are just two of the "senior Democratic lawmakers" who have "seemed reluctant in recent interviews to commit the new administration to following the Army Field Manual in all cases" -- despite the fact that both Feinstein and Wyden said throughout the year that they emphatically favored such a measure and even co-sponsored legislation requiring it.

From the Times article:  "in an interview on Tuesday, Mrs. Feinstein indicated that extreme cases might call for flexibility."  And:  "'I think that you have to use the noncoercive standard to the greatest extent possible,' she said, raising the possibility that an imminent terrorist threat might require special measures."  Wyden's comments were even worse:  

Senator Ron Wyden of Oregon, another top Democrat on the Intelligence Committee, said he would consult with the C.I.A. and approve interrogation techniques that went beyond the Army Field Manual as long as they were “legal, humane and noncoercive.”  But Mr. Wyden declined to say whether C.I.A. techniques ought to be made public.

What makes this so notable is that, for the last year, Feinstein and Wyden were both insistent that the only way to end torture and restore America's standing in the world was to require CIA compliance with the Army Field Manual -- period.  But as long as George Bush was President, it was cheap and easy for Feinstein and Wyden to argue that, because they knew there was no chance it would ever happen.  As they well knew, they lacked the votes to override Bush's inevitable veto of any such legislation.  So as long as Bush was President, it was all just posturing, strutting around demanding absolute anti-torture legislation they knew would never pass.  

But that has all changed now.  Although Obama's top intelligence adviser, John Brennan, has questioned whether it was necessary or wise to do so, Obama himself said repeatedly and unequivocally during the campaign that he supports legislation to compel CIA compliance with the Army Field Manual, making it virtually impossible for him to veto any such legislation if Congress passes it.  Thus, Senate Democrats now know that if they pass the law they claimed so vehemently to support, it would actually get enacted.

So now, suddenly, Feinstein and Wyden are sending at least preliminary signals that they are far more "flexible" on the issue -- I believe the all-justifying catchword in vogue now is "pragmatic" -- than they ever were before.  What had been an unequivocal principle has instantly transformed into caveat-riddled buzzphrases.  I'm sure we'll be hearing shortly -- from many precincts -- that those of us who insist that Democrats fulfill their commitment to compel the CIA's compliance in all cases with the extant Army Field Manual (not some brand new, more permissive set of guidelines written and issued in secret and which provides for exceptions), are guilty of being dreaded "ideologues," purity trolls and civil liberties extremists.  

Just to get a flavor for how unequivocal Democrats had been on this issue, here is a statement Feinstein herself issued on October 15 -- less than two months ago:

U.S. Senator Dianne Feinstein (D-Calif.) today denounced the Bush Administration's secret approval of torture methods used by the CIA during interrogations, and renewed her call for all U.S. intelligence agencies to be required to follow the Army Field Manual's rules on interrogations. . . .

"To me, this further demonstrates why a single standard for interrogations across all branches of the government - including the CIA - is necessary," Senator Feinstein said. "I believe it is very dangerous not to set this standard across the board, and the only document that does this is the revised Army Field Manual. The abuses we've seen at Guantanamo, at Abu Ghraib, and in Afghanistan clearly show the spillover results of allowing the CIA to engage in coercive interrogations.

Let's repeat what Feinstein said:  "the only document that does this is the revised Army Field Manual." 

In an Op-Ed she co-wrote last February with Sen. Sheldon Whitehouse for The San Diego Union-Tribune, urging the President to sign their bill to compel the CIA's compliance with the Army Field Manual (co-sponsored by Sen. Wyden), Feinstein was just as emphatic:

Here's why this is so important:

It is the right thing to do. . . .

Our intelligence agencies would be able to effectively interrogate detainees – by using 19 techniques that are today used with success by the military . . . .

The Army Field Manual has been in use for decades. It was updated in 2006 to reflect lessons learned from combat in Iraq and Afghanistan. . . .

The 19 interrogation techniques authorized by the Army Field Manual come with strict protocols for their use. Most of these techniques involve psychological approaches – for example, making a prisoner believe cooperation could save his country by ending a war more quickly.  Military commanders say these methods produce good intelligence.

And listen to the unequivocal vow Feinstein made, as reported by CQ on April 28, 2008:

“The CIA has heard the message that a majority in both houses of Congress want the uniform standard provided by the Army field manual,” [Feinstein] said the day before Bush vetoed the 2008 bill in March. “We will not stop until it becomes law.”

After the House failed to override the veto, Feinstein said, “We’ll just keep sending it back, and he can keep vetoing it.” 

"We will not stop until it becomes law."

Wyden has been just as emphatic, giving a speech on the Senate floor in supporting Feinstein's no-exceptions bill (which he himself co-sponsored) back in February in which he said: 

With respect to the role of the military, they already abide by interrogation rules that are flexible and effective. They have been used by professional military interrogators with many years of experience and they are clearly effective . . .

The Army Field Manual actually makes it quite clear which techniques are authorized for all service members and which require special permission. So there it is, the need for this legislation - just on the basis of the developments of the last few weeks - is even more important than it was.

There was no talk whatsoever by either of them of the need for "flexibility" in "extreme cases" or using noncoercive measures only "to the greatest extent possible" or the need for "special measures" in times of heightened threat environments or "approv[ing] interrogation techniques that went beyond the Army Field Manual" or the need to have the interrogation laws be kept secret -- all the things which Feinstein and Wyden are suddenly telling The New York Times they are now considering.  What changed?

What is needed in order to put an end to the Bush torture regime are absolute, unequivocal, and transparent legal prohibitions governing interrogations, ones that are devoid of ambiguity, flexibility and secrecy.  Feinstein and Wyden certainly purported to recognize exactly that all year long when, as they well knew, they weren't in a position to do anything about it.  Now that they are, they ought to follow through on what they repeatedly said they intended to do.

Obviously, the CIA can and should develop specific interrogation tactics that are classified, but only within the parameters of unambiguous and fully disclosed laws.  As Feinstein and Wyden have argued -- correctly -- all year long, the Army Field Manual authorizes robust and effective interrogation techniques, and there is no reason to re-write it for the CIA or to carve out exceptions to it.  

Anyone who doubts that should just read this Washington Post Op-Ed from the military interrogator who used those techniques in Iraq to find Abu Musab al-Zarqawi and who wrote that they were far more effective than techniques that go beyond the Field Manual.  And, as Mazzetti and Shane reported:  "a dozen retired generals and admirals are to meet with senior Obama advisers to urge him to stand firm against any deviation from the military’s noncoercive interrogation rules."

Several members of Congress, such as Rush Holt, have called on Obama not to wait for Congress to act and, instead, to immediately issue an Executive Order compelling government-wide compliance with the Army Field Manual.  Obama should do that.  But, as Holt recognizes, this is really an area where Congress can and must legislate. 

For that to happen, Feinstein and Wyden need to return to the clear, principled position they claimed to believe in throughout the year.  All this sudden talk of exceptions and "special measures" and new, secret guidelines do nothing but cloud an issue where absolute clarity is most needed.  That's exactly the wrong message to be sending -- both about the authenticity of the Democrats' pledge to end torture and about the country's intent to cleanse itself of the abuses of the last eight years.

Copyright ©2008 Salon Media Group, Inc.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

Posted in Politics, torture

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