POLITICS
12/16/2014 05:46 pm ET Updated Dec 16, 2014

Congress Just Tried To Legislate Against Torture, But Don't Get Too Excited Yet

WASHINGTON -- Good news, CIA critics: Buried in a tiny provision in the crowded omnibus spending bill that just passed through the Senate is language that prohibits any of the government’s spending money from going towards torture.

“None of the funds made available in this Act may be used to support or justify the use of torture, cruel, or inhumane treatment by any official or contract employee of the United States Government,” reads the bill's “Prohibition Against Torture” section, which comes over a thousand pages into the massive text.

The $1.1 trillion spending measure passed through the Senate 56-40 late Saturday night, ensuring that the government will keep running through next September. As the nation grapples with the gruesome realities revealed in the recently released executive summary of the Senate Intelligence Committee’s report on the CIA’s post-9/11 torture program, the passage seems, on its face, to be a response to the outrage.

But don’t be fooled -- Congress has inserted language like this into its spending bills for years. And while “torture” may be prohibited, writing legal opinions to circumvent that prohibition is not.

After all, torture was technically illegal when the CIA started using waterboarding, rectal feeding and a whole host of other gruesome interrogation techniques in the years following 9/11. But the Bush administration got around this by having the Justice Department concoct the infamous "torture memos" to justify the harsh techniques.

“From a legal perspective, that language doesn’t really change the status quo. Torture and cruel, inhumane and degrading treatment are already prohibited under domestic and international law,” said Raha Wala, senior intelligence counsel for the advocacy group Human Rights First. “The problem we had after 9/11 was that, despite the prohibition against torture, Bush administration officials engaged in loophole lawyering to allow the CIA to engage in conduct that is otherwise pretty clearly considered unlawful torture or cruel treatment.”

Indeed, the spending bill’s text isn’t the first outlaw of “torture” that appears in U.S. law. Domestic and criminal statutes, along with international law, forbade torture long before the Bush administration crafted a legal tap dance in order to commission it. In fact, anti-torture language is regularly included in appropriations bills.

Along with the broader outlaw, the spending bill also restricts the government from using any of its funding to circumvent international law against torture.

“None of the funds made available in this Act may be used in contravention of the following laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” the text reads.

The tiny restrictions included in the spending bill are the absolute legislative minimum that Capitol Hill could do to weigh in on the ongoing torture debate. But Wala notes that there are ways Congress could pack a harder punch than these minor provisions, such as a separate standalone bill or adjustments to existing legislation.

“There are several steps that Congress could take to make sure this doesn’t happen again. One might be to expand the restrictions in the 2005 Detainee Treatment Act so they would apply not just to the military but also to the CIA,” Wala said, referring to legislation that restricts the U.S. military to the interrogation techniques outlined in the Army Field Manual. The restrictions the act puts on the intelligence community, however, are fuzzier, and torture opponents say there is far too big a loophole that could allow a non-military entity to torture again.

“Another [option] would be to codify into federal law certain provisions within the president’s anti-torture executive order," Wala continued. "Yet a third option would be to tighten within the federal statutes the criminal prohibition against torture, so that it’s more in line with international law and less likely to allow for abuse in the future.”

The fact that Congress regularly inserts anti-torture language into spending bills indicates how innocuous such provisions are. This year's language is hardly an anomaly. But the timing of the legislation, coming shortly after release of the Senate's summary of its torture report, led some observers to point out the provisions with interest.

Interestingly, the explicit provisions forbidding “torture, cruel, or inhumane treatment” were not included in the government funding bills in 2003 or 2004, both years in which the CIA's torture program was active.

That, however, is likely just coincidence since, thanks to the Justice Department memos, the techniques being used in the Bush-era program were not considered “torture” anyway.

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