New polls showing the American people think torture is justified, and extracts useful information, will probably give lawmakers another way of telling themselves that they needn’t do anything. But none of this means we shouldn’t continue pushing Congress to act.
Torture is already illegal, but Wyden notes that protections can be strengthened. To oversimplify, the U.S. is a signatory to the U.N. Convention Against Torture, in which participating states agreed to outlaw intentionally inflicting severe pain for specific purposes. The Bush administration obviously found a (supposedly) legal route around that. After the Abu Graib revelations, John McCain helped pass a 2005 amendment that would restrict the military from using specific brutal interrogation tactics — those not in the Army Field Manual. (This didn’t preclude intel services from using these techniques, which might explain why CIA director John Brennan felt free to say the other day that future policymakers might revert to using them).
In 2008, Congress passed a measure specifically applying those restrictions to intelligence services, too, but then-President Bush vetoed it. Senator Wyden would revive a version of that 2008 bill as a starting point, with the goal of codifying in law President Obama’s executive order banning the use of those specific techniques for all government employees, those in intelligence services included.
I spoke to Wyden today about his forthcoming bill, and a transcript, lightly edited for length and clarity, follows.
THE PLUM LINE: What exactly would your bill do?
SENATOR RON WYDEN: Given the fact that John Brennan opened the door last Thursday to the possibility of torture being used again, I want to close that door. And I want to do it by putting it in black letter law. The bill is going to bar the authorization and use of torture ever again.
In doing that, it provides the basis for prosecution in the future. The Justice Department has indicated they are not going to prosecute the conduct that has been perpetrated. We’re going to start with the bill from 2008, which passed on a bipartisan basis. It banned the use of torture and it was vetoed by the Bush-Cheney team.
PLUM LINE: Torture is already illegal. Why do we need another law? What does this do that current law doesn’t?
WYDEN: It’s fairly clear that the Bush administration found their way around the last law. What we know for sure is that the Bush administration found enough of a way to get around it, that the Justice Department won’t prosecute.
If you read the four corners of the McCain bill [the 2005 amendment described above] it addresses the military. It doesn’t apply the same rules to the CIA. The 2008 bill would have been harder to get around.
PLUM LINE: This will pose a challenge to Obama, right? While he did sign an executive order, the question is, given what Brennan said, will Obama support this new legislation?
WYDEN: I hope that he will. What he did coming out of the gate in his first term was very inspiring. Given what John Brennan said last Thursday — given the opportunity to close the door on what the president believes in, Brennan didn’t do it — I hope that the president supports the bill. A statute trumps an executive order. I’ll be making the case to the president.
PLUM LINE: Given that Republicans will control the Senate, and given that they’ve basically said the only troubling thing about the report is that it was released at all, is there even the remotest chance that anything moves an inch?
WYDEN: Congress responds to the public. We now have a chance to make our case. Intelligence leaders told the American people for almost a decade that torture works. We’ve had out for seven or eight days a committee report that looks at what CIA officials were saying in real time about torture. It shows the assertion that “torture works” was wrong. We have had seven days to make our case.
As members of Congress get a chance to digest the report — it’s new — I hope that we can get the Senate together to keep this from happening again.
PLUM LINE: Even if its prospects are difficult, isn’t one of the reasons for pushing this to get lawmakers on record as to whether they support or oppose prohibitions on future torture?
WYDEN: When we started the fight against [National Security Agency] bulk phone record collection, we started out having a handful of votes. In the last vote there were 58 votes in the U.S. Senate for major surveillance reform. When the Snowden [NSA] disclosures first broke, the polls were also against us. After months of debate the polls changed.
It’s certainly going to be challenging, given the years of misrepresentations and falsehoods. I’m not underestimating how hard this is. But it’s an important fight to make.