What the next step on torture?
by digby
Greg Sargent at the Washington Post lays out the next logical step:
President Obama banned torture by executive order upon taking office, limiting techniques to those included in the Army Field Manual. But, even though the new report paints a grisly portrait of what torture as practiced really looked like — and, in the view of some legal experts, confirmed that crimes were committed — there is simply no guarantee that a future president won’t reverse this order.
As the Senate report on torture put it: “These limitations are not part of U.S. law, and could be overturned by a future president with the stroke of a pen. They should be enshrined in legislation.”
Some Democratic staffers have been discussing whether to push forward with some sort of legislative proposal that would codify in statute that such torture techniques are illegal. Though details are scarce, the basic idea would be to make it harder for such a thing to happen again, by requiring that Congress have a say in whether these techniques are resumed, rather than just the president.
Such a proposal would logically come from Senate Intelligence Committee chair Dianne Feinstein’s office, perhaps with the support of Senator John McCain, who (unlike many Republicans) endorsed the report’s findings. A Feinstein staffer would only say that her office expects to say something on such recommendations by the end of the week.
Chris Anders, senior legislative counsel for the American Civil Liberties Union, tells me that such a move is the next logical step for lawmakers who actually want to do something about these revelations.
“Our view is that basically all the significant acts in the report are already crimes under federal law,” Anders says. “There really isn’t a need to make anything new a crime, but this would reinforce the prohibitions. A legislative response could take the president’s executive order and make it a statute that Congress passes and the president signs.” Such a law, Anders notes, would put more of an onus on Congress to revisit the statute before any such torture could happen again.
It sounds good but I'd guess the chances of this happening are about as good as Dick Cheney going on CNN and apologizing for every horrible thing he's ever done. It's theoretically possible but highly unlikely. And even if someone got it to the floor, almost every Republican and a sizeable number of Democrats wouldn't vote for it. And beyond that, I'd imagine the president would veto it on the basis of it being a usurpation of presidential authority. ("Just trust me, we won't allow it to happen again, but this is about the constitution blah, blah, blah ...)
The problem here isn't legal. Torture is already illegal. And sadly, if it became necessary, there's a very good chance that the government would see fit to find a way to legalize it. That's what the Bush administration did before and I could easily see the congress doing it too. As I've written, making laws is inadequate as the sole method to rein in the government.
But it can't hurt to get people on the record on this. Who will take the lead?
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