The U.S. Senate's Tuesday passage of a limited ban on torture is being met with mixed enthusiasm from human rights advocates, who alternately praise it as a "historic" victory and "too little, too late, but better than nothing."
Co-authored by Sens. John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.), the amendment to the National Defense Authorization Act passed 78 to 21, with all those voting against the torture prohibition coming from the Republican Party.
"Such legal fixes won’t carry weight in the future if those responsible for torture in the past aren’t brought to justice."
—Laura Pitter, Human Rights Watch
The legislation requires that U.S. government agencies—including the FBI, CIA, and Pentagon—only use interrogation and detention tactics permitted in Army Field Manual 2-22.3 and mandates that the Red Cross be given access to people detained in U.S. custody.
If passed, the amendment would codify a 2009 executive order from President Barack Obama aimed at eliminating acts of torture, including what is euphemistically referred to as waterboarding. Rights advocates have been concerned that a future administration would seek to overturn this presidential decree.
However, there is a key problem with Tuesday's legislation. Appendix M of the Army Field Manual permits use of tactics—including sleep and sensory deprivation—that many, including the United Nations Committee Against Torture, have warned entail torture or inhumane treatment.
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The appendix "could conceivably be read as permitting techniques like the now banned so-called 'frequent flier program,' in which detainees were moved continuously between cells to deprive them of sleep and keep them disorientated, 112 times in 14 days in one documented case," wrote Slate journalist Joshua Keating on Tuesday.
Rebecca Gordon, author of Mainstreaming Torture and the forthcoming book American Nuremberg, told Common Dreams that the manual also does not address extraordinary renditions: "Nothing in the field manual prevents us from shipping people to other countries to be tortured. That is a practice I believe still goes on."
The Senate amendment purports to deal with these omissions by mandating that the manual be reviewed and updated—and be made available to the public.
Melina Milazzo, senior policy council for the Center for Victims of Torture, told Common Dreams "we have long had concerns about Appendix M," but expressed confidence that those concerns will be addressed through the revision processes.
"I think that the passage of the amendment to the NDAA was a historical bipartisan vote that demonstrates that an overwhelming majority of senators across the political spectrum oppose torture," Milazzo said. "I think that the legislation goes far enough in that it will prevent any future torture program from being established in the United States. This will make it difficult for the CIA torture program to ever exist again in the future."
Gordon, however, had a different take: "I have no confidence whatsoever that the field manual will be updated to protect people captured by the U.S. government."
"What I will say is it that the amendment is an important repudiation of torture—a step towards what we really need: a public repudiation of the things that have been done in the War on Terror that are crimes against humanity."
—Rebecca Gordon, author
"I don't think it's likely the amendment will survive the House," said Gordon. "What I will say is it that the amendment is an important repudiation of torture—a step towards what we really need: a public repudiation of the things that have been done in the War on Terror that are crimes against humanity."
Gordon's ultimate assessment was: "It's too little, too late, but better than nothing."
A coalition of groups, including the Center for Victims of Torture, Physicians for Human Rights, and the ACLU, released a statement last week supporting the measure as an important protection against the prospect of future torture. "Had the McCain-Feinstein amendment been in place following the 9/11 attacks we believe it would have significantly bolstered other prohibitions on torture and made it far more difficult, in not impossible, for the CIA to establish and operate their torture program," the groups wrote.
Laura Pitter, senior national security counsel for Human Rights Watch, echoed this point in a statement released last week: "Requiring the CIA and other U.S. agencies to abide by one uniform set of interrogation rules will help prevent torture. But such legal fixes won’t carry weight in the future if those responsible for torture in the past aren’t brought to justice."
Keating called the amendment an "important step" but noted "it’s absurd that such a measure is necessary. These techniques are prohibited under international law by the Geneva Conventions and the U.N. Convention on Torture, both of which the U.S. has ratified. The 'cruel, inhuman, or degrading treatment or punishment' of detainees was further banned by a previous 'McCain Amendment' to the 2005 Detainee Treatment Act."
Among anti-torture campaigners, there appears to be universal agreement on one thing: the Senators—all Republicans—who voted against the anti-torture protections, however limited, are on the wrong side of history. Their names are as follows:
- Sen. Jeff Sessions, Alabama
- Sen. Tom Cotton, Arkansas
- Sen. Michael Crapo, Idaho
- Sen. James Risch, Idaho
- Sen. Daniel Coats, Indiana
- Sen. Joni Ernst, Iowa
- Sen. Pat Roberts, Kansas
- Sen. Mitch McConnell, Kentucky
- Sen. David Vitter, Louisiana
- Sen. Thad Cochran, Mississippi
- Sen. Roy Blunt, Missouri
- Sen. Deb Fischer, Nebraska
- Sen. Benjamin Sasse, Nebraska
- Sen. Jim Inhofe, Oklahoma
- Sen. James Lankford, Oklahoma
- Sen. Lindsey Graham, South Carolina
- Sen. Tim Scott, South Carolina
- Sen. John Cornyn, Texas
- Sen. Orrin Hatch, Utah
- Sen. Mike Lee, Utah
- Sen. John Barrasso, Wyoming