Feinstein's Uphill Battle To Permanently Ban the Use of Torture

“Never again.” This was the vow of many lawmakers and government officials when the Senate Select Committee on Intelligence released its long-awaited so-called “torture report” examining the “enhanced interrogation techniques” used by the CIA under the Bush administration.

Now, Sen. Dianne Feinstein, D-Calif., is introducing a bill this week to make the ban on torture permanent, saying there is nothing to stop a future U.S. president from authorizing the same controversial techniques her report outlined.

“That’s the whole point,” Feinstein told Defense One. “Most of this is done by executive order, as opposed to law,” she said, so she’s trying to “codify what needs to be codified, so it can’t be undone later.”

Feinstein has spent years working for the release of the Intelligence committee’s 5-year investigation into the Bush-era CIA detention program, which from 2002 to late 2007 handled at least 119 individuals. Last month, she released a 525-page executive summary of the full 6,700-page report, which remains classified. The summary detailed brutal tactics, from rectal feeding to waterboarding to mock executions, as well as mistaken imprisonment and evidence that the CIA willfully misled the White House and Congress.

(Related: How the Intelligence Community Can Move Beyond the Torture Report)

Now Feinstein is bracing for a fight over the legacy of the report, which has come under intense scrutiny since its release. Republicans who sharply criticize the report as a one-sided, partisan hit job have taken control of Congress. Feinstein has handed over the gavel of the Intelligence Committee to Sen. Richard Burr, R-N.C., who told Defense One last week that legislation isn’t necessary. And public anxiety over national security threats has spiked in the wake of terrorist attacks in Paris, creating a climate in which attempts to soften U.S. interrogation tactics are likely to be construed as watering down the intelligence community’s ability to detect potential terror plots.

Weeks before the attacks in Paris and shortly after the release of the report, 58 percent of Americans said that “looking ahead” the “torture of suspected terrorists” is often or sometimes justified, according to a Washington Post-ABC poll. While the committee argued in its report it had found extensive evidence to refute the claim that the CIA’s interrogation tactics helped thwart terrorism and saved lives, 56 percent of Americans believe the agency, according to a December Pew poll.

“The legislation I am introducing would codify and improve existing legislation with respect to the use of torture in this country. If people want to go on the record opposing that, so be it,” Feinstein said. “To me, it’s a very major component of everything we’ve been trying to do. So I’m going to fight the fight -- that’s all I can do.”

The legislation would codify aspects of Obama’s 2009 Executive Order 13491, “Ensuring Lawful Interrogations,” which prohibits the use of “enhanced interrogation techniques.” The new law would “close all torture loopholes” by clarifying existing statutes to explicitly ban torture, Feinstein said.

Sen. John McCain, R-Ariz., a prisoner of war in Vietnam, introduced provisions to the 2005 Detainee Treatment Act in order to prohibit “cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government,” as laid out in the Fifth, Eighth, and Fourteenth Amendments; the U.S. Army Field Manual; and the U.S.-ratified Geneva Conventions and U.N. Convention Against Torture. But as Feinstein pointed out, even after Congress passed the legislation, the Justice Department’s Office of the Legal Counsel under Bush determined the CIA’s “Enhanced Interrogation Techniques” were legal and that such statutes were open to executive interpretation.

Under Feinstein’s legislative proposals, the U.S. Army Field Manual -- which the CIA now uses -- would be legally established as the only set of approved interrogation techniques government-wide. The U.S. would be required to notify the Red Cross of new detainees and provide access to them as soon as possible, and the CIA would be prohibited from holding detainees beyond a "a short-term, transitory basis.”

In June 2013, the CIA adopted an internal set of recommendations after it reviewed an initial version of the Intelligence Committee report, CIA spokesman Ryan Trapani told Defense One. He said the CIA has made “substantial progress” implementing them. The reforms include enhanced vetting of officers being considered for sensitive programs, and regular revalidation that the agency is following the Justice Department’s legal guidance.

Feinstein also asked the White House to take executive action to enact greater oversight of all intelligence operations so that the CIA and other agencies aren’t policing themselves. She proposed barring contractors from serving in “inherently governmental functions” as part of any covert action and videotaping all national security interrogations.

“They’re very practical and I think necessary, because a good deal of the problem is the covert programs,” Feinstein said. “The fact that something is covert gives it the opportunity to be hidden.”

National Security Council officials declined to comment on the proposals, saying they are still under review. “As a general matter, however, we share the senator’s goal of ensuring the techniques that led to those recommendations are never employed again,” NSC spokesman Ned Price told Defense One.

Last month, Obama said, “Rather than another reason to refight old arguments, I hope that today’s report can help us leave these techniques where they belong—in the past.”

Burr echoed this sentiment on Tuesday. "To have an end chapter of a book and go back and try to write the preface to it and other chapters is a mistake," he said. "I want to look forward and do oversight in real time and not oversight that goes 10 years back."

Burr and Feinstein make something of an odd couple as chair and vice chair of the Intelligence Committee. Feinstein has been increasingly critical of the administration, particularly following revelations of CIA spying on committee staffers. Burr was one of six senators on the Intelligence Committee who signed the committee minority’s dissention from the report. Of that group, Sens. Jim Risch, R-Idaho; Daniel Coats, R-Ind.; and Marco Rubio, R-Fla., continue to serve on the committee.

Feinstein said her legislation could potentially go through the Judiciary Committee, but her spokesman Tom Mentzer said it will likely be referred to the Intelligence Committee for a hearing, markup and vote, saying, “When those actions happen is up to the chairman.”

But lawmakers are already gearing up for 2016 – including Burr, who is up for re-election – raising the political stakes. Ahead of the release of Feinstein’s report, Rubio, a likely presidential candidate who has been talking tough on national security, said in a joint statement with Risch: “As a nation at war, we need a coherent detention and interrogation policy in order to extract valuable intelligence about terrorist networks from captured operatives.”

Feinstein insists the recommendations aren’t “way out in left field or way out in right field.” McCain is one of her primary partners on reform. The Armed Services Committee chairman told Defense One he’ll be supporting the legislation.

Burr disputes that the Intelligence Committee wasn’t sufficiently briefed on the CIA’s detention program. “What we’re dealing with is members that have selective memory,” he said. “Now I won’t tell you that we knew all the specifics … some of it is pretty gruesome. The great thing is that a lot of that we’ll never do again.”

What ensures that? “What we will do in the future to make sure that won’t happen again, is we’re going to do real-time oversight,” he said.

As of Friday, Burr had not reviewed Feinstein’s legislation, but he said, “I’m happy to consider any changes that collectively the administration and intelligence community and committee believe are important.” “Many of the conclusions of the report I vehemently disagree with,” he continued. “But there were recommendations that I embraced and they are recommendations that the CIA has said they embrace, and it doesn’t take legislation for those to be made.”

But when asked whether the CIA should continue detention, he responded, “Well, can you tell me whether we’re gonna have another 9/11 again? … We have to have the ability to eliminate potential threats.”

Burr said he believes that real-time oversight can preserve the intelligence community’s capabilities while fulfilling Congress’s responsibility. The chairman said each of the five major intelligence agencies will brief the committee once every six weeks. The CIA, FBI and National Counterterrorism Center have already committed. CIA Director John Brennan and FBI director James Comey “were absolutely besides themselves to want to participate,” Burr said. “The directors recognize the unique ability this provides them to have a much closer, candid relationship with the committee.”

“Ultimately, more frequent abilities to get together means more information is shared,” he said, “and I think it makes for a better functioning intelligence community, and it gives me the comfort of knowing I can attest to 85 members of the Senate –” the ones outside of the committee – “‘We’re doing our job.’”