A measure aimed at preventing government officials and contractors from engaging in illegal torture passed the Senate on Tuesday in an overwhelmingly vote. The legislation, however, falls short of completely eradicating abusive practices at US government detention facilities.
Approved 78-21, the amendment to the National Defense Authorization Act (NDAA) requires most government agencies and contractors handling detainees to obey interrogation policies laid out in the Army Field Manual, which prohibits torture techniques like waterboarding that were used by the CIA on terror suspects post-9/11.
Torture is already illegal under domestic and international law, yet the Obama administration’s Justice Department has declined to bring charges against any current or former officials who played a hand in crafting the Bush-era secret detention program.
Rather than focusing on accountability, lawmakers focused on future prevention by passing the amendment.
“Current laws already ban torture,” Sen. Dianne Feinstein (D-Calif.), a cosponsor of the measure, said on the floor of the Senate before the vote.
“However,” she added, “this amendment is still necessary because interrogation techniques were able to be used, which were based on deeply flawed legal theory.”
Sen. John McCain (R-Ariz.) also cosponsored the legislation. “This amendment provides greater assurances that never again will the Untied States follow that dark path of sacrificing our values for our short time security needs,” he claimed.
A former prisoner of war in Vietnam, McCain alluded to his own experiences, urging colleagues to vote for the measure.
“I know from personal experience that the abuse of prisoners does not provide good reliable information,” he said.
Although Senators purport that the legislation will end torture, the measure may actually codify forms of torture for the first time.
While the Army Field Manual does outlaw some of the most egregious forms of torture described in last year’s Senate Intelligence Committee report on the enhanced interrogation program, it still permits techniques that are considered cruel and degrading including stress positions and sleep deprivation.
In 2013, a task force of medical ethicists urged the administration to make changes to the Army Field Manual, claiming that it endorses the use of “cruel, inhuman, or degrading treatment,” and that it violates international law.
In addition to creating a uniform interrogation standard to be followed by the government, the amendment also includes transparency and oversight measures to ensure the Army Field Manual remains unclassified, and that any future changes to it are subjected to public scrutiny.
It gained the support of a number of lawmakers on both sides of the aisle, including Sens. Rand Paul (R-Ky.) Ron Wyden (D-Ore.), and Angus King (I-Maine).
Whether the McCain-Feinstein amendment survives, and is codified into law remains to be seen. The Senate still has several other amendments to consider this week before a final vote on the must-pass defense policy bill.
The House approved its own version of the NDAA last month that did not include the Senate’s anti-torture language, meaning the amendment will likely have to survive a forthcoming reconciliation process to resolve the differences between the House and Senate passed bills.
If signed into law, the amendment would codify an executive order established by President Obama in 2009 requiring all federal agencies to follow the Army Field Manual’s interrogation rules.
