Closing the Torture Loophole: Bringing America Back from the Brink

After months of Republican obstruction, the Senate will finally vote this afternoon on a provision that would end CIA torture once and for all. It is long past time that we apply the Army Field Manual's standards to all interrogations, leaving the Bush administration no doubt that torture is always and everywhere impermissible.

The Senate will soon vote on the Intelligence Authorization Bill, which contains a provision requiring all U.S. government agencies, including the CIA, to comply with the Army Field Manual's prohibition on torture. This reform is urgently needed, and I commend the Intelligence Conferees for adopting this provision. Its enactment will ensure that the government uses only interrogation techniques that are lawful.

In the Detainee Treatment Act passed in 2005, Congress attempted to reaffirm our commitment to the basic rights enshrined in the Geneva Conventions and restore America's standing in the eyes of the world as a nation that treats detainees with dignity and respect. These rights reflect the values we cherish as a free society, and they also protect the lives of our servicemen and women overseas.

Today, however, we know that the 2005 Act has fallen short of our goals. By not explicitly applying the Army Field Manual's standards to all government agencies, we left open a loophole that that the Bush administration promptly drove a Mack truck through.

The CIA's so-called "enhanced interrogation program," carried out in secret sites, became an international scandal and a profound stain on America in the eyes of the world. The administration issued an Executive Order last year to try to minimize the outcry, but the Order failed to renounce abuses such as waterboarding, mock executions, use of attack dogs, beatings, and electric shocks. The disclosure of secret opinions by the Office of Legal Counsel gave further evidence that the administration has interpreted the Detainee Treatment Act and other anti-torture laws in an unacceptably narrow manner. Attorney General Mukasey's refusal at his confirmation hearings to say whether waterboarding is illegal gave us even more reason for concern.

The outrages don't end there. Two months ago, the New York Times reported that in 2005 the CIA had destroyed at least two videotapes documenting the use of abusive techniques on detainees in its custody. These videotapes have been withheld from federal courts, the 9/11 Commission, and congressional committees. Two weeks ago, in his testimony before the Senate Judiciary Committee, the Attorney General flat-out refused to consider investigating possible past acts of torture or to brief congressional committees on why he believed the CIA's "enhanced interrogation program" is lawful.

Just last week, we received official confirmation that the CIA had used waterboarding on three detainees. At the same time, the White House made the reckless claim that waterboarding is legal and that the President can authorize its use under certain circumstances.

The White House position is directly contrary to the findings of courts, military tribunals, and legal experts that waterboarding is a violation of U.S. law and a crime against humanity. In the words of a former Master Instructor for U.S. Navy SEALs, "waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration -- usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death."

Waterboarding has a long and brutal history. It is an ancient technique of tyrants. In the fifteenth and sixteenth centuries, it was used in the Spanish Inquisition. In the nineteenth century, it was used against slaves in this country. In World War II, it was used against our troops by Japan. In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and military dictatorships in Chile and Argentina. Today, it is being used against pro-democracy activists in Burma. That's the company we keep when we fail to reject waterboarding.

In fact, Attorney General Mukasey couldn't even bring himself to reject the legal reasoning behind the infamous Bybee "torture memo" of the Office of Legal Counsel, which stated that physical pain amounts to torture only if it is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." According to that memo, anything that fell short of this standard would not be torture. CIA interrogators called the memo their "golden shield," because it allowed them to use virtually any interrogation method they wanted.

When the memo became public, its flaws were obvious. Dean Harold Koh of Yale Law School testified that in his "professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read." The Bush administration was embarrassed into withdrawing the memo. But to this day, no one in the administration has repudiated its contents. The torture memo continues to haunt this country. I have asked the Attorney General several times to reject its legal reasoning, but he continues to refuse to do so.

The only solution is for Congress to apply the Army Field Manual's standards to the entire government. There has rarely, if ever, been a greater need to restore the rule of law to America's interrogation practices.

The Field Manual represents our best effort to develop the most effective interrogation standards. The Manual clearly states that "[u]se of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [interrogator] wants to hear."

The Manual gives our interrogators great flexibility and provides all the techniques necessary to effectively question detainees, but it makes clear that illegal and inhumane methods are prohibited. In a letter to our troops dated May 10, 2007, General Petraeus stated, "our experience in applying the interrogation standards laid out in the Army Field Manual... shows that the techniques in the manual work effectively and humanely in eliciting the information from detainees."

Applying the Field Manual's standards throughout our government will move us closer to repairing the damage to our international reputation in the wake of the Abu Ghraib scandal. It will once again commit the United States to be the world's beacon for human rights and fair treatment. It will improve the quality of intelligence gathering, and protect our own personnel from facing punishment, condemnation, or mistreatment anywhere in the world. It will make us more, not less, safe.

Torture is a defining issue, and it is clear that under the Bush administration, we have lost our way. By applying the Field Manual's standards to all U.S. government interrogations, Congress will bring America back from the brink -- back to our values, back to basic decency, back to the rule of law.

Comments

[research]

It's not torture IF "no permanent physical damage"?

rape, sodomy, shock, drugs, burns, dogs, hoods, ... torture...

... American?

[PoliticalAnimal]

With all due respect for Senator Kennedy, whom I greatly admire (and who is the main reason I've committed to supporting Barrack Obama, Hillary being the other ...), America will never again be "a beacon for human rights and fair treatment" as you hope. Mr. Bush & the NeoCON cabal have made sure of that.

But at least America may be able to look itself in the eyes again. That alone would be a huge improvement.

[reflectivepundit]

Whatever legislation the congress adopts, nothing will change--even if President Bush would sign pertinent bills into law. President Bush signed several bills into law that prohibited torture. But in his signing statements he left no doubt that it is his prerogative to allow whatever "aggressive interrogation" techniques he deems necessary. We all know--or should know--what that means. reflective­pundit.com

[GhostOfSchlesinger]

Thank you, Senator Kennedy, for your work on this issue and your years of service through a generation of Republican mis-rule.

[vippy]

Question we should ask why is congress/senate
standing by while our prez violates the constitution they have sworn to uphold.
Curios!

[wiretapped]

We can do something today by going to wexlerwant­shearings.­com and signing the petition to impeach Cheney. Rep. Wexler is presenting the petition to the House leadership tomorrow and it is very close to having a quarter million signatures.

Make a difference!

[pmorlan]

This is certainly good news but what took so long and why haven't we held these people accountable? In my mind anyone in the administration who was involved in creating or implementing the torture policy is a war criminal and should be held accountable.

[NoFactsJustTruth]

There IS a Constitutional 'issue', Senator Kennedy, that can prevent ANY legislation passed from being effective, whether it's legislation on banning torture of prisoners or ending the occupation of Iraq. I speak, sir, of continuous reinterpretation of LAW by the Executive branch with each and every 'signing statement'.

Unless and until this authority itself has been halted, a unitary executive ENABLED BY CONGRESS thumbs it's collective nose at OUR Constitution, YOUR legislation and the very concept of 'Rule of Law'.

OUR Government seems to be sending citizens the message LAW no longer exists, and MANY democrats just yesterday joined republicants in telling Americans, 'do as we say - not as we do, it's OK though if WE in Government break the Law', as if those abusive autocratic 'attitudes' have EVER worked ...ANYWHERE. OUR nation, AND it's founding principles, HAVE BEEN BETRAYED, and 'party' kool-aid drinkers just continue to swallow their outrage and integrity - for acceptance.

How can ANY elected officials delude themselves that THIS ex-post-facto pardon, for helping criminal elements in OUR Government to defy Constitutional Law and spy on citizens(before 9/11), will in ANY way end well for OUR country?

[legendmn]

Sen. Kennedy,
I am a great admirer of your's, but I have a couple of questions for you...
Since torture was already illegal before this bill passed, according to U.S. Law, International Law and 100 years of precedent, why do you think this administration will obey this law when they have willingly broken the existing laws of the past?
The President has publicly stated that he has the power to violate laws that he doesn't agree with. What will your equal branch of government do to assert your authority when that happens?
Thank you for your service to our country.

[hopeless277]

I'm tellin' ya, folks, the Dems are IN ON THE CRIMES. Why else would they cave SO EASILY? They knew about the torture and the wiretapping and CONDONED it. That is why they are rushing the immunity bill through. Protecting their own asses as usual. We, the people, have no say in our government. We may as well be prisoners.

[research]

The DLC.ORG half of the dems are in on it.

The other half of the dems are are only chance.

[Overd0g]

Using the "army field manual" as some arbitrary definition of torture isn't a magic pixie dust that will make thinking people turn off their brains. Why not use Ghenghis Khans field manual?

[scooperss]

I no longer expect my so-called representatives to represent my wishes/views. If they did we would not be in Iraq, we would not be hearing about immunity for ANYONE, torture would not even be debated, and accountability would be strictly enforced.
YOU and your fellows legislators took us to the edge of the cliff by not listening to people who called, wrote, and marched in the streets.
Don't make that a royal *we*. I want no part of your *we*.

[llozano]

I just read that a new legal "opinion" from the Justice Department says that waterboarding is illegal. However if left just as an opinion this or any future administration could decide to continue this practice because it is just an opinion. It is better to have a law in writing that specifically and unequivocally forbids this barbaric practice once and for ever. However, this president has used his so-called "signing statements" to get around laws that he disagrees with. I am unsure of the legality of signing statements at this time but I am sure of how Bush operates. As a nation we must keep our leaders in check and within the law. Thank you for helping us get back on track Mr. Kennedy.

[Beckyjo]

I have just read that Sen. McCain voted against the torture bill...in other words, he is for torture. Just what we need, the chance of having another president who believes in torturing people. Please, everyone, get ready to go out and vote for Obama if you haven't already.

[alohaboxer]

Voting against this bill does not mean you are for torture, and I am sure a man who was himself tortured, thought long and hard about the vote. I am quite sure he would be one of the better "subject matter experts" on this issue than anyone in Congress. So don't jump to some anti-right rant based on a vote you don't understand. You are taking the headline and caption approach, garnered from some newsstory. The Issue is separate and distinct and has repurcussions. The Army Field Manual was only changed in 2006; but still, the issue here is the foreign affairs powers granted to the President and AUMF (115 Stat. 224) and what is appropriate force. It is a line in the sand on what is appropriate, that is all. Congress passed the AUMF and I cite it since it needs to be read by many here. After you read that, get into Article II and you have a very interesting issue that isbeing sold to the public as if a toymaker was making its toys out of pur crack.

[Herrington]

alohaboxer, I am loathe to label McCain's vote as being for torture. His vote must be considered in the context of the larger bill in question. Still the question might be better framed as is he more against prosection of the telecoms than he is against torture? Probably and utterly unfair question except that he is running for President and dirt is the game.

And you keep bringing up AUMF. See my response to you below.

[research]

That's Why this bill Passed! Because they have revised the Army field manual!

Oddly, The new Manual site is out of service as is McCains comments on Torture.

[Sundialsvc4]

SENATOR Kennedy ...

Senator KENNEDY ...

You come from one of the esteemed families in 20th Century American politics. While I understand that it may cause you pain to look upon a 50-cent piece, your brother's visage is there.

You, and ninety-nine of your Colleagues, comprise the most powerful institution of democratic government now on the Planet.

"Of those to whom much is given, much is required." You and your Colleagues have been given the keys of Power ... by more than 300 million people's momentary and revocable consent. We have given you that Power in Trust.

Not only your Citizens but also the greater members of the World Community expect you, and require you, to uphold that Trust with Honor. And part of that Honor, Sir, is to know what is right and to uphold what is right on behalf of all men.

We executed Japanese officers for waterboarding as a war-crime, because it was and is. By the same token, Commanders who (through their soldiers or their hired thugs) engage in or permit war-crimes to be committed on their Watch frankly deserve no less .. although we may, in mercy, merely imprison them forever.

These are no "loopholes," Sir, they are High Crimes... and you, every of you, YOU KNOW IT.

Now, esteemed Senators and Representatives, I charge you: "Do Thou Your Duty."