Constitutional Law

Bush Vetos Bill Banning Harsh Interrogation Techniques and Requiring Reports to Congress

In his weekly radio address on Saturday morning, President Bush announced his veto of an intelligence authorization bill, H.R. 2082 (PDF), citing its limits on the CIA's interrogation methods. (The relevant sections are 326 and 327).

The Congressional Research Service, in this report on Interrogation of Detainees, summarized the legislation as related to interrogation as follows (emphasis added):

H.R. 2082 . . . would generally bar any person, in the custody or effective control of either an element of the intelligence community or a contractor or subcontractor of the intelligence community, from being subjected to any treatment or interrogation tactic not authorized by the Army Field Manual.

This prohibition would effectively bar the CIA and others from employing certain controversial interrogation techniques, such as waterboarding or sleep deprivation, that are barred by the Army Field Manual, regardless of whether the intelligence community had previously deemed such techniques as legally permissible. H.R. 2082 would not prohibit the Army Field Manual from being revised in the future, meaning that the scope of prohibited conduct could potentially be modified.

H.R. 2082 also contains a provision requiring the Director of National Intelligence to report to appropriate committees concerning detention or interrogation methods approved or discontinued following enactment of the McCain Amendment and MCA, along with the legal basis behind the decision to approve or rescind authorization of such techniques.

The Army Field Manual on Human Intelligence Collector Operations bans the use of torture. It explains (page 5-21):

Use 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 HUMINT collector wants to hear. Use of torture can also have many possible negative consequences at national and international levels.

The manual specifically bans:

5-75. If used in conjunction with intelligence interrogations, prohibited actions 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 pain.
• “Waterboarding.”
• Using military working dogs.
• Inducing hypothermia or heat injury.
• Conducting mock executions.
• Depriving the detainee of necessary food, water, or medical care.

UPDATE: Additional resources

• ACS Briefing: Where Do We Go From Here? Destruction of the CIA Interrogation Tapes and Oversight of the War on Terror (video) (transcript)
• ACS Briefing: Interrogation, Torture, and the War on Terror (transcript)
• ACS Symposium: War, Terrorism, and Torture-- Limits on Presidential Power in the 21st Century (link). 
  • David Cole and Martin S. Lederman, The National Security Agency's Domestic Spying Program: Framing the Debate
  • Former OLC Attorneys, Guidelines for the President's Legal Advisors
  • William Michael Treanor, The War Powers Outside the Courts
  • Christopher H. Schroeder, Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in Chief
  • Saikrishna Prakash, Regulating the Commander in Chief: Some Theories
  • H. Jefferson Powell, The Executive and the Avoidance Canon
  • Cornelia Pillard, Unitariness and Myopia: The Executive Branch, Legal Process, and Torture
  • Deborah N. Pearlstein, Finding Effective Constraints on Executive Power: Interrogation, Detention, and Torture
  • Louis Fisher, Lost Constitutional Moorings: Recovering the War Power
  • Neil Kinkopf: The Statutory Commander in Chief
  • Harold Hongju Koh, Can the President Be Torturer In Chief?
  • Dawn E. Johnsen, Foreword: Symposium on "War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century"

Full post as published by ACS Blog on March 08, 2008 (boomark / email).