The Slatest

Will the U.S. Finally, Actually, Once and for All Outlaw Torture? 

John McCain and Dianne Feinstein.

Photo by WIN MCNAMEE/AFP/Getty Images

The U.S. Senate today overwhelmingly approved an amendment to outlaw the practice of torture by U.S. personnel, including waterboarding, sexual humiliation, extreme temperatures, and other techniques used in the past by the CIA against terrorism detainees.

The amendment to the 2016 Defense Authorization Act was sponsored by a bipartisan group of senators led by Arizona’s John McCain, America’s most prominent survivor of wartime torture, and California’s Dianne Feinstein, chairman of the Select Committee on Intelligence, which released a major report on the CIA’s interrogation program at the end of last year. If the massive defense bill, with the amendment intact, reaches President Obama’s desk—which could depend on the outcome of a number of unrelated debates—it will mark a significant step forward in the effort to restrict the use of torture, though a few ambiguities still remain.


The amendment would sign into law the executive order on interrogation issued by Obama in 2009, which mandates that all detainees under custody of any U.S. personnel—including the CIA—should not be subjected to any techniques not approved in the Army Field Manual. The techniques prohibited by the manual include, but are not limited to:

• Forcing the detainee to be naked, perform sexual acts, or pose in a

sexual manner.

• Placing hoods or sacks over the head of a detainee; using duct tape

over the eyes.

• Applying beatings, electric shock, burns, or other forms of physical


• “Waterboarding.”

• Using military working dogs.

• Inducing hypothermia or heat injury.

• Conducting mock executions.

• Depriving the detainee of necessary food, water, or medical care.


Anti-torture campaigners have been worried that Obama’s executive order could be overturned by his successor, particularly given his administration’s reluctance to investigate or pursue charges against those responsible for torture. There’s reasonable cause for concern given the potential candidates: Jeb Bush has several of his brother’s advisors working for his campaign, including two former CIA directors, and Marco Rubio suggested a re-examination of the use of waterboarding in 2011. (Rubio was not in attendance for today’s vote.) This legislation, if passed, would make the ban on these techniques much more binding and permanent.


Still, it’s absurd that such a measure is necessary. These techniques are prohibited under international law by the Geneva Conventions and the U.N. Convention on Torture, both of which the U.S. has ratified. The “cruel, inhuman, or degrading treatment or punishment” of detainees was further banned by a previous “McCain Amendment” to the 2005 Detainee Treatment Act.


But as constitutional law professor David Cole notes, the new legislation seems designed to prevent future administrations from interpreting existing laws to “permit what they were plainly designed to prohibit,” as the Bush Justice Department’s Office of Legal Counsel notoriously did. The new legislation approaches the problem differently than previous bans, Cole writes: “Instead of expressing a broad prohibition, it confines interrogators to a set list of expressly approved techniques. That approach, already used by the military for their interrogations, avoids ambiguity; if a technique is not affirmatively approved, it is banned.”

The legislation won’t end the debate over interrogation. For one thing, critics, including a U.N. panel that U.S. officials testified before last December, have suggested that the field manual itself may not be up to the standards of international law, and could be read as permitting “torture lite,” including sleep deprivation and sensory deprivation. Appendix M of the manual, which describes the practice of separating detainees in order to prevent them from communicating, stipulates that detainees be allowed at least four hours of sleep per night. The army defends this by saying it should be read as a minimum, not a maximum, but it could conceivably be read as permitting techniques like the now banned so-called “frequent flier program,” in which detainees were moved continuously between cells to deprive them of sleep and keep them disorientated, 112 times in 14 days in one documented case. The new legislation addresses concerns over the manual by mandating that the Pentagon review and update it every three years to reflect “current evidence-based best practices”—which seems to presage future debates on the exact definition of torture.  


There is also increasing alarm over “proxy detention,” the practice of handing detainees over to the custody of third party countries with more permissive detainee treatment laws. Detainees have been subjected to brutal treatment in Afghanistan, Iraq, and Somalia while those countries’ governments were cooperating with the Obama administration’s counterterrorism efforts. CIA Director John Brennan affirmed in March that “There are places throughout the world where CIA has worked with other intelligence services and has been able to bring people into custody and engage in the debriefings of these individuals,” raising concerns that the agency has not so much stopped using “enhanced interrogation” as it has outsourced it.

The legislation as written does not directly confront all the ways the CIA might try to circumvent U.S. torture rules, but it is an important step toward ensuring that the worst abuses committed by U.S. personnel after 9/11 won’t be repeated—even if those who did the torturing won’t be punished for it.