Several presidential candidates have been asked recently whether, if elected, they would consider bringing back “enhanced interrogation,” a euphemism for various forms of torture and cruel treatment that U.S. personnel inflicted on suspected terrorists in the aftermath of 9/11.
Congress is answering the question for them.
Today, the Senate passed the National Defense Authorization Act for Fiscal Year 2016 (NDAA). The House of Representatives approved the bill late last week. In so doing, Members adopted a provision that prohibits the resurrection of anything like the CIA’s notorious secret detention and interrogation program.
Section 1045 of the NDAA has four main features. First, it extends the 2005 Detainee Treatment Act by restricting all U.S. government agents – not just the military – to only those interrogation techniques listed in the Army’s Field Manual on human intelligence collection. (There is an exception for law enforcement and immigration officials, who in their day to day work can continue to use authorized, non-coercive interrogation and interview methods not specifically listed in the Army manual). Here, the 114th Congress went farther even than President Obama’s 2009 Executive Order “Ensuring Lawful Interrogations,” which imposed the same rule but only in the context of an armed conflict. Section 1045 is not so limited.
Second, section 1045 requires that the Army’s interrogation manual remain public, and that any changes to it be made public prior to taking effect. Third, it mandates a “thorough review” of the Army’s manual – considering best practices for interrogations – to ensure that the methods the manual sets out are lawful and do not allow for the use or threat of force. This review must be completed within three years of section 1045 becoming law and recur every three years thereafter.
Finally, section 1045 requires prompt access by the International Committee of the Red Cross to any wartime detainee held by the U.S. government.
There is a general perception that both Congress and the public are deeply divided, along partisan lines, over how the United States should treat detainees in its custody. Not so. In fact, there is widespread agreement that our government should repudiate torture and cruel treatment.
According to a January 2015 poll commissioned by The Constitution Project, majorities of Republicans, Democrats and independents all believe that torturing people is immoral and that Congress should strengthen laws against it. Section 1045 is both a result, and a reflection, of public opinion; indeed, 78 Senators voted for a slightly more protective version of section 1045 when it was introduced by John McCain and Dianne Feinstein as an amendment to the Senate-side NDAA in June. Those 78 included the Chair and Ranking Member of each of the Intelligence, Armed Services, Judiciary, Foreign Relations, and Homeland Security Committees. By one calculation, the McCain-Feinstein amendment got more support than 8o% of amendments voted on during the last three Congresses.
Even CIA Director John Brennan opposes a return to coercive interrogations: “I personally remain firm in my belief that enhanced interrogation techniques are not an appropriate method to obtain intelligence and that their use impairs our ability to continue to play a leadership role in the world,” Brennan said in his memorandum transmitting the CIA’s response to the Senate Select Committee on Intelligence oversight report on the now-defunct CIA program. “Moreover, it is my resolute intention never to allow any Agency officer to participate in any interrogation activity in which enhanced interrogation techniques would be employed.”
This year’s NDAA is highly controversial – though for unrelated reasons – and President Obama has threatened to veto it. Even if he follows through, given the level of support for section 1045 it looks to be on the path to becoming law, whether through a post-veto renegotiated NDAA or another legislative vehicle.
Once section 1045 is woven into the web of preexisting domestic and international laws banning torture and cruel treatment, it is hard to see how any future President could resuscitate “enhanced interrogation.” It is equally hard to understand why he or she would want to defy the public, the Congress, and the law to try.
Update: On October 7 Senators McCain and Feinstein entered into the Congressional Record a colloquy explaining the handful of changes made to section 1045 – as originally adopted by the Senate – during the process of reconciling the House and Senate versions of the NDAA. Both the language of the law enforcement exception (described above) and the timeline for reviewing the Army’s interrogation manual were revised. Senator Feinstein asked if these changes would “somehow open the door to the use of coercive interrogation techniques…?” “No,” McCain responded, later noting that he was the one who co-authored the original Senate amendment and who negotiated the agreement on the final language in section 1045. “I assure the Senator from California that this is not the case and that I would not have agreed to any such provision if it were.”
Senator Feinstein also submitted a statement of her own reinforcing Senator McCain’s view and further describing the history and purpose behind section 1045. She leaves no doubt with respect to the latter: “We are saying with this law that coercive interrogations will never again be used, period.”