Washington—Senator Dianne Feinstein (D-Calif.) released the following statement after the Senate approved the National Defense Authorization Act, which included language to limit the use of interrogation techniques to those authorized by the Army Field Manual and to guarantee access to detainees by the International Committee of the Red Cross. The House already passed the legislation, which now goes to the president.
“I rise to thank Chairman McCain and Ranking Member Reed for their efforts to include an anti-torture provision in the conference report on the National Defense Authorization Act for Fiscal Year 2016 (H.R. 1735).
Section 1045 of the conference report establishes clear limits on interrogation techniques so that the United States can never again conduct coercive and abusive interrogations or indefinite secret detentions.
Section 1045 applies the restrictions on interrogations in the Army Field Manual under current law to the entire U.S. Government. The provision therefore extends what Congress did in 2005, by a vote of 90-9, with the Detainee Treatment Act, which banned the Department of Defense from using techniques not authorized by the Army Field Manual, and also banned across the government the use of cruel, inhumane, and degrading treatment or punishment.
Section 1045 also requires prompt access by the International Committee of the Red Cross to any detainee held by the U.S. Government.
Both of these provisions are consistent with U.S. policy for the past several years, but Section 1045 will now codify these requirements into law.
President Obama banned the use of coercive and abusive interrogation techniques by Executive Order in his first few days in office (on January 22, 2009).
That Executive Order (No. 13491) formally prohibits—as a matter of policy—the use of interrogation techniques not specifically authorized by Army Field Manual 2-22.3 on Human Intelligence Collector Operations. Section 1045 places that restriction into law, which is long overdue.
What this means is that a future President can’t simply re-write the policy—these limitations are now a matter of law and can’t be undone without a future act of Congress.
Section 1045(a)(2) states that an individual in custody or otherwise detained “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual.”
Section 1045(a)(2)(B)(i) makes clear that the ban on interrogation techniques not authorized by the Army Field Manual applies to all individuals “in the custody or under the effective control of an officer, employee, or other agent of the United States Government,” whether during or outside an armed conflict.
This is a very important change. Unlike the Executive Order, which only applies to armed conflict, we are saying with this law that coercive interrogations will never again be used, period.
Section 1045(b) codifies a separate section of President Obama's January 2009 Executive Order, requiring access by the International Committee of the Red Cross to all U.S. detainees in U.S. Government custody—which has been historically granted by the United States and other law-abiding nations and is needed to fulfill our obligations under international law, such as in the Geneva Conventions.
I know my colleagues are well aware of the Executive Summary of the Study released by the Intelligence Committee in December 2014 on the deeply flawed Detention and Interrogation program carried out by the CIA beginning in 2002.
During my Floor speech on the Study in December 2014, I described how the interrogations of CIA detainees from 2002 onward were absolutely brutal and ineffective.
In August of 2014, President Obama said what many of us have known for years: that the CIA’s now-defunct interrogation program amounted to torture.
CIA Director John Brennan has clearly stated he agrees with the ban on interrogation techniques that are not in the Army Field Manual. Director Brennan wrote the following to the Intelligence Committee in 2013 about the President’s 2009 Executive Order:
“I want to reaffirm what I said during my confirmation hearing: I agree with the President’s decision, and, while I am the Director of the CIA, this program will not under any circumstances be reinitiated. 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.”
More recently, in a September 11, 2015, letter to me, Director Brennan wrote that “CIA strictly adheres to Executive Order 13491, 3 C.F.R. 199 (2009), and fully supports efforts to codify key provisions of the executive order in the National Defense Authorization Act for FY 2016.”
As a result of the Anti-Torture statute (18 U.S.C. § 2340A) and passage of the Detainee Treatment Act in 2005, current law already bans torture, as well as cruel, inhuman or degrading treatment or punishment.
However, the provision in this bill is still necessary because the CIA was able to employ brutal interrogation techniques based on deeply flawed legal theories that those techniques did not constitute “torture” or “cruel, inhumane, or degrading treatment.”
Opinions written by the Department of Justice's Office of Legal Counsel (known as “OLC”), which could not withstand scrutiny and have since been withdrawn, managed to twist legal reasoning beyond all recognition and find that waterboarding, sleep deprivation up to 180 hours at a time, stress positions, slamming a detainee into a wall, and other similar techniques were not torture.
OLC reached these erroneous legal judgments by ignoring the inherent brutality of the CIA’s so-called “enhanced interrogation techniques.” While ignoring that fact, OLC claimed CIA’s techniques were a necessity to keep Americans safe and OLC mistakenly found the CIA program was managed and implemented with great care, which it was not.
This stood in stark contrast to the clear language of the anti-torture statute in the U.S. code, and the Convention Against Torture, which the United States Senate ratified in 1994.
That Convention, clearly and absolutely, bans torture. It says that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
And yet so-called “enhanced interrogation techniques”—not allowed by the Army Field Manual, were approved, used, and abused by the Bush Administration.
Section 1045 will serve as an additional bulwark to prevent similar techniques from ever be used again by imposing—on all of the U.S. government—the same restrictions that apply to the U.S. military today under the Detainee Treatment Act.
Mr. President, in order to make sure that the legislative history is clear, I’d like to describe the minor changes that were made to the language of this anti-torture provision during the conference.
As described in the Joint Explanatory Statement of the Committee of the Conference, the following two minor changes were made to the amendment.
First, regarding the applicability of this new provision to law enforcement interrogations, Section 1045 makes clear that the new limitations “shall not apply to officers, employees, or agents of the Federal Bureau of Investigation, the Department of Homeland Security, or other Federal law enforcement entities.”
The version that passed the Senate and this final version both have an exemption for law enforcement because law enforcement agencies do not use the Army Field Manual and are already required to use non-coercive interrogation methods in which officers question suspects in order to elicit voluntary statements.
This exemption is consistent with and reinforces the relevant requirements of Executive Order 13491 on “Ensuring Lawful Interrogations,” which allows law enforcement agents to use only “authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.”
For example, since at least 2004, it has been the policy of the FBI that “no attempt be made to obtain a statement by force, threats, or promises,” according to the Legal Handbook for FBI Special Agents which was publicly recounted by the FBI General Counsel in July 24, 2004, Congressional testimony.
As the conferees to the defense bill wrote in their Joint Explanatory Statement: “The conferees recognize that law enforcement personnel may continue to use authorized non-coercive techniques of interrogation.” The absence of this language in the final bill text should not be interpreted as any authorization for law enforcement to use any coercive interrogation techniques.
The second minor change to the anti-torture amendment that was made in the conference committee is that the timing for the completion of the required update to the Army Field Manual—after the specified “thorough review”—was changed from “[n]ot later than one year” to “[n]ot sooner than three years” in subsection (a)(6)(A) of Section 1045.
This change does not alter the importance of the required review, the imperative that it be initiated in the immediate future, and that it be completed in three years time.
The language of the provision is clear: the conferees wanted the Secretary of Defense to be thorough and gave him three years to complete the review. But the amendment says that he “shall complete” a thorough review after three years, not that he “shall initiate” a thorough review after three years.
It is also important to point out that, regardless of the timing of this statutorily required review, this administration or the subsequent administration may at any time revise portions or the entirety of the Army Field Manual.
As Section 1045(a)(6)(A) states, revising the Army Field Manual is not optional; it is a “Requirement to update.” Moreover, the provision makes clear that this requirement must be undertaken every three years. Therefore, it would be inconsistent with the title, structure, and purpose of this subsection to suggest that the initial review following enactment can be postponed indefinitely.
Also, as the amendment notes, revisions to the Army Field Manual may be necessary to ensure that it complies with the legal obligations of the United States, a requirement that the Executive Branch is obligated to adhere to at all times.
In addition, no matter when the updates to the Army Field Manual are made, the manual “is designed to reflect best practices for interrogation to elicit reliable statements,” as the conferees also wrote their Joint Explanatory Statement. America’s best and most experienced interrogators have consistently and emphatically stated that best practices for eliciting reliable, actionable intelligence solely involve non-coercive techniques that elicit voluntary statements.
Let me now turn briefly to part (b) of Section 1045, which codifies part of President Obama’s Executive Order of January 2009 requiring access by the International Committee of the Red Cross (ICRC) to all U.S. detainees in U.S. Government custody.
This requirement—which is based on our obligations under international law – has had bipartisan support in previous Congresses.
As we know from our own history and from the experiences of detainees around the world, closing the door to the ICRC opens the door to torture and other forms of mistreatment. Providing ICRC access is also necessary for our moral standing and critical to our efforts to defend human rights abroad.
Finally, our troops depend on the promise of ICRC access should they be taken prisoner. Now is the time to ensure that we live up to the values—in practice and in law – that we expect will be accorded to our own members of the military.
Mr. President, I have been opposed to coercive interrogations and the use of so-called “enhanced interrogation techniques” since I first learned of their use at Abu Ghraib and by the CIA. This bill, at long last, puts the end to them. I am very proud to have been part of the process to author and support this provision and very much thank the bill managers for their insistence that it remain in the final legislation.
Whatever one may think about the CIA's former detention and interrogation program, we should all agree that there can be no turning back to the era of torture. Coercive interrogation techniques do not work, they corrode our moral standing, and ultimately they undermine counterterrorism policies they are intended to support.”