As Congress debates the mammoth bill known as the National Defense Authorization Act, Sens. Dianne Feinstein (D-Calif.) and John McCain (R-Ariz.) are pressing their colleagues to include an amendment that would strengthen the prohibition against the kind of torture inflicted on suspected terrorists during the George W. Bush administration. Such legislation is long overdue.
Under the Detainee Treatment Act of 2005, all U.S. personnel were ordered in general terms to refrain from engaging in "cruel, inhuman, or degrading treatment or punishment" of anyone in custody. But only interrogators employed by the Department of Defense were required to abide by the Army Field Manual, which made specific practices off-limits. Exempt from the requirement was the Central Intelligence Agency, which took the lead in unsavory interrogations. An attempt by Congress to force the CIA to follow the manual was vetoed by Bush in 2008.
In 2009, President Obama issued an executive order requiring all interrogators to abide by the manual. In its current form, the manual includes both general language against torture and a specific ban on eight techniques: waterboarding; forcing a detainee to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over the head of a detainee or using duct tape over the eyes; applying beatings, electric shock, burns or other forms of physical pain; using military working dogs; inducing hypothermia or heat injury; conducting mock executions; and depriving the detainee of necessary food, water or medical care. (The manual says that prohibited actions include, but are not limited to, these specifics.)
It might seem obvious that all of these methods amount to "cruel, inhuman, or degrading treatment or punishment." But as lawyers in the Bush administration demonstrated, general definitions of torture can be creatively construed to justify horrific abuses. It's vital that prohibitions of torture be both general and specific.
In addition to codifying Obama's order, the amendment proposed by Feinstein and McCain would require that the manual be periodically reviewed to ensure that its provisions reflect U.S. legal obligations and "evidence-based best practices" for interrogations that don't involve the use or threat of force. Revisions would be made public. Finally, the bill requires all agencies of government to provide the International Red Cross with access to detainees in their custody.
In the panic that followed 9/11, the U.S. government forsook American values and traveled to what former Vice President Dick Cheney called the "dark side." It has taken years for this country to reckon with that betrayal of its ideals. It was only last year, for example, that the public was provided with a summary of the conclusions of a Senate Intelligence Committee investigation of Bush-era detention and interrogation policies.
In her foreword to that report, Feinstein, then the committee chairwoman, wrote that Obama's executive order should be "enshrined in legislation." Now is the time for Congress to take that step.