Ayotte’s Pro-Torture Amendment Referred to Conference

Update: Adam Serwer informs me that I misunderstood what happened in the colloquy where this was discussed. Ayotte’s pro-torture amendment was withdrawn.

I apologize for my error.

As Jeff Kaye laid out here, Kelly Ayotte submitted an amendment to the Defense Authorization that would override Obama’s Executive Order eliminating torture (the language of the amendment is below).

I had thought the amendment would get a vote, be easily defeated, and be history.

But instead, the amendment got referred to the conference that will work out differences between the House and Senate bills.

Now, normally, I’d assume this is a convenient way to get rid of it. But given that the amendment would presumably have been voted down by the Senate, I worry that this effectively keeps it alive to be put in the larger package. Then, members of the House and Senate will vote for the whole package (not wanting to defeat the whole defense authorization). Who knows, maybe they’ll stick it in the classified section of the bill, so none of us will be able to prove that our members of Congress are voting for torture?

Such decisions get made by the sponsor of a bill–in this case, Carl Levin. And they rarely get made without the assent of the Administration.

While it’s not clear what will happen to Ayotte’s amendment–and to our brief efforts to stop torturing–the fact that it won’t be defeated by a upperdown vote bodes ill.

(a) Authority.–Notwithstanding section 1402 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), the personnel of the United States Government specified in subsection (c) are hereby authorized to engage in interrogation for the purpose of collecting foreign intelligence information using methods set forth in the classified annex required by subsection (b) provided that such interrogation methods comply with all applicable laws, including the laws specified in subsection (d).

(b) Classified Annex.–Not later than 90 days after the date of the enactment of this Act, and on such basis thereafter as may be necessary for the effective collection of foreign intelligence information, the Secretary of Defense shall, in consultation with the Director of National Intelligence and the Attorney General, ensure the adoption of a classified annex to Army Field Manual 2-22.3 that sets forth interrogation techniques and approaches, in addition to those specified in Army Field Manual 2-22.3, that may be used for the effective collection of foreign intelligence information.

(c) Covered Personnel.–The personnel of the United States Government specified in this subsection are the officers and employees of the elements of the intelligence community that are assigned to or support the entity responsible for the interrogation of high value detainees (currently known as the “High Value Detainee Interrogation Group”), or a successor entity.

(d) Specified Laws.–The law specified in this subsection is as follows:

(1) The United Nations Convention Against Torture, signed at New York, February 4, 1985.

(2) Chapter 47A of title 10, United States Code, relating to military commissions (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) The Detainee Treatment Act of 2005 (title XIV of Public Law 109-163).

(4) Section 2441 of title 18, United States Code.

(e) Supersedure of Executive Order.–The provisions of Executive Order No. 13491, dated January 22, 2009, shall have no further force or effect, to the extent such provisions are inconsistent with the provisions of this section.

(f) Definitions.–In this section:

(1) ELEMENT OF THE INTELLIGENCE COMMUNITY.–The term “element of the intelligence community” means an element of the intelligence community listed or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

(2) FOREIGN INTELLIGENCE INFORMATION.–The term “foreign intelligence information” has the meaning given that term in section 101(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)).

17 replies
  1. MadDog says:

    This is not good news. I agree with you EW that this makes the Ayotte legislation more likely to made into law.

    I wonder who’s bright idea this was? Harry Reid’s?

    I can understand it a wee bit if some idiot Democrat wanted to get all Repugs to stand up and say they supported “torture”, but not tied to a Defense Authorization bill, and not in a conference committee effort.

    Muy estúpido!

  2. allan says:

    “And they rarely get made without the assent of the Administration.”

    That says it all, doesn’t it?

  3. Jeff Kaye says:

    2 quick things:

    1) Appendix M, which already includes torture techniques, began as a “secret” classified annex. Only with protest by some (Mark Warner comes to mind) was its fate changed.

    2) Jason Leopold and I were told by DoD about a year ago now that the current Army Field Manual was being rewritten.

    My speculation: that the parts of the manual, and especially Appendix M, are headed back to secrecy. This is demanded by the torturers and militaristic clique that have regained ascendancy under Obama. They may add some of those old Rumsfeld/SERE techniques to what is now Appendix M, but whatever it is, it won’t be in the published version. They will say it is for national security, and no Democrat will make a peep.

    The failure to address the torture scandal, whether it’s the ongoing torture, or hold past torturers accountable (some of whom now hold high positions in the IC and military, some of whom, I know for a fact, still visit the White House), has thrust the entire anti-torture struggle into a series of rear-guard actions.

    Thanks for posting on this, Marcy.

  4. emptywheel says:

    @Jeff Kaye: That’s what I’m thinking. No reason to move it to conference unless you want it to pass. In which case that seems to be what they’re doing.

    So how do we prove that Obama has embraced torture?

  5. Jeff Kaye says:

    @emptywheel: The proof of Obama and torture is, ironically, his reliance on the current Army Field Manual, which itself is not compliant with international human rights law (as two prominent medical professionals are quoted in my article, one of them specifically laying out which techniques in the Army Field Manual amount to CIDT and or torture).

    The problem in therefore not in proving such, but gathering the political will to engage the issue.

    I should note that there are very competent reports of torture underway at Bagram, and cruel treatment at Guantanamo. The very secrecy of course prevents our “proving” this in a manner that might be acceptable to some, i.e., beyond the reports of victims. Yet the latter can be made to stand up forensically in court. I know, as I have testified as such in the asylum courts, and torture victims have been recognized as such.

    Remember that whole Istanbul Protocol brouhaha? — that’s all about the forensic examination of torture victims for judicial evaluation.

    Again, I will repeat, it is not proof we need at this point. It is political will, and the willingness to fight back against the mushy liberal “left” who are all too willing to swallow the Obama memes about stopping torture, shutting down black sites (they merely transferred them to JSOC and contractors), etc.

  6. Richard S says:

    I keep asking the same question of all of the smart people I know and I haven’t gotten a good answer: How is torture different from rape? I would like one of these pro-torture people to explain to my satisfaction why they are so pro-rape.

  7. MadDog says:


    “…So how do we prove that Obama has embraced torture?”

    One of the things I was going to thank you for in your Warsame post was the fact that I got to read Senator Levin’s July 7th floor statement on Warsame which provided me information that I didn’t know such as:

    “…Warsame is a Somali national who was captured in the Gulf region in late April and taken to a U.S. Navy vessel for detention and interrogation. The Department of Defense has stated that the interrogation was conducted by an interagency team comprised of U.S. military personnel with assistance from the High-Value Detainee Interrogation Group…”

    My reading of Senator Levin’s statement leads me to conclude that military personnel (and perhaps others like the CIA) were Warsame’s primary interrogators, and since they are supposed to conducting interrogations under the rubric of the Army Field Manual, one might also conclude that a number of the odious Appendix M techniques that Jeff and others have written about were likely used during Warsame’s 2 month long interrogation.

    That interrogation by military personnel was also confirmed later in a September 8 NYT piece:

    “…Attention has focused on the two months that the defendant, Ahmed Abdulkadir Warsame, spent in extralegal detention on a United States naval vessel. He was questioned there by military interrogators, who did not issue a Miranda warning…”

    If Warsame’s lawyers are up to snuff, Priya Chaudhry and Lee Ginsberg may already have definitive testimony on just what Warsame’s interrogation techniques consisted of.

  8. Bill Michtom says:

    What am I not understanding?

    “provided that such interrogation methods comply with all applicable laws, including the laws specified in subsection (d).”

    This says it must comply with the Convention Against Torture, which does not allow torture.

    What’s the secret?

  9. Mary says:

    If the language on “supersedure” remains, in any fashion, it almost has to be vetoed.

    So some options would be
    1. They are going to take the supersedure language out, leave the rest, call it a compromise and Obama signs, maybe with a signing statement on his powers to direct actions of exec branch employees. Also, take out the supersedure language and have obamas guys pretty much promulgate the existing techniques and then what? There is no standard for what they come up with and the legislation doesn’t even clearly allow for successor appointees in those positions to issue new rule under pres Newtmitt Romrich.
    2. They’ve decided that the whole thing is pretty ill advised and in hindsight want Obama to veto it and be able to frame it as caused by a crazy republican and also be able to maybe get republicans on the record voting for the proposition that congress can engage in “supersedure” of Executive orders (which it can’t, although it can do other things to nullify an exec order).

    B Michtom, all torture will be classified and without legal review. Remember, in our “compliance” with CAT, we’ve disappeared and never accounted for children, conducted mock executions with children, engaged in sexual assaults of all types and varieties, took hostage and threatened their life and threatened sexual assault, stripped and took pictures as a matter of policy for CIA kidnap victims, stripped, doused and froze to death, worked with foreign govs to have genitals sliced and diced and to engage in live burials, etc. all of which has “compled” by virtue of classification avoiding judicial, with CAT.

  10. Mary says:

    Richard S, remember that pretty much everyone who saw them said that the unreleased Abu Ghraib pictures included rape – now go find who was prosecuted for that. Sodomy with objects was reported over and over and was basically a standard part of the CIA “preliminaries” for detainees.
    Those preliminaries included threatening their life in conjunction with kidnapping them, stripping them and having women come and take pictures of them, often threats or bragging of rape involving family members from children to mothers, and then having the kidnap victim nonconsensually drugged with mind lettering substances and the formof administration was deliberately chosen as anal to get the further impact of penetration. None of which are discussed in the memos released so far.

    Higazy made his false admissions after his interrogator explained that Higazy’s sister was going to be picked up by Egyptian operatives, known to use rape as a tool of governance. The looming towers described the Egyptian tactic of digging and raping young boys, the taking pictures to use to threaten them into being assets and it was those Egyptian tactics that the bushies over and over wanted to emulate to show how “tough” they are.

  11. Jeff Kaye says:

    Well Marcy, re Serwer’s article in MJ on the amendment…

    I’m not so convinced. Serwer writes, in an update forced by my Twitter confrontation for him to produce the evidence the amendment was “kaput,” “I previously stated incorrectly that the interrogation amendment had been withdrawn. It was rejected as not germane by the parliamentarian, which makes it unlikely it’ll be in the final bill.”

    I’m trying to get clarification on this from Levin’s office, but “unlikely” is not the same thing as “withdrawn” or “kaput”. You might wish to change your Update to clarify the amendment was NOT withdrawn.

    If or when I get further clarification, I’ll let people know. Meanwhile, none of this goes against what I wrote, i.e.

    But whether the amendment passes or not, the existence of certain interrogation techniques as used currently by the US military and intelligence services in the “Manual” do not comply with international norms, such as the Geneva Conventions….

    Dr. Vincent Iacopino, the lead author of the IFEG statement, told Truthout in an email, “Although the DoD [Department of Defense] may not consider the use of goggles and earmuffs as a form of sensory deprivation, the IFEG Statement does…. Since the IFEG Statement makes clear that the use of goggles and earmuffs is a form of sensory deprivation, equivalent to hooding, that constitutes CIDT and, under some circumstances, torture, it should be clear that we consider the DoD’s use of goggles and earmuffs [in the Army Field Manual] a form of CIDT and/or torture as well.” (Emphasis added.)

    I just got finished with interview at RT (saw you there the other day and you were great!), and I made much the same point.

  12. Jeff Kaye says:

    I’d note that there is a lot of backstage machinations going on around this amendment. The torture/interrogations question is not something they like to talk about, at least not honestly, in an open forum.

    They’ve got their media assets out there on this one, you can count on that.

  13. GKJames says:

    Afraid all we’re doing is putting lipstick on the pig, in part to sustain the we’re-the-good-guys narrative, and in part to give legal cover to the torturers and their enablers.

    The law is for chumps, those who obsess about technicalities. How else to explain Ayotte’s requiring interrogation methods that comply with law then making it impossible to determine whether the government is complying. This isn’t legislation; it’s playing at legislation. The fact is the US has institutionalized torture, no matter how hard it argues otherwise.

  14. Jeff Kaye says:

    2:25pm PST

    From the SASC office, in reply to my query:

    The Senate has not yet acted on the Ayotte amendment, so it is still pending. Debate time expires at 6:00 p.m. and then the Senate will have to dispose of all remaining amendments, so you may want to watch C-SPAN 2 to see what happens.

    So what is Adam Serwer talking about??

  15. Jeff Kaye says:

    Final word from SASC, which is in line with Adam Serwer’s update/correction at his article:

    The amendment was ruled non-germane, so it will not be considered in conference.

    My source is Kathleen Long, spokesperson for Sen. Levin. My problem with Serwer’s “correction” is that it was without a source. It also doesn’t explain why he had a different take later in the day from his original report.

    The entire fate of the amendment is murky, in that no one from Ayotte/GOP camp will speak about it. A spokesperson at Human Rights Watch wrote to tell me that regarding the “classified annex” proposal, they “would put a lot of money on it coming up on another bill one day.”

Comments are closed.