WASHINGTON -- Amid the public furor that followed the release of the Senate’s gruesome investigation of the CIA’s torture program, the stage was set for Congress to act. Yet former Senate Intelligence Committee Intelligence Committee chair Dianne Feinstein (D-Calif.) is taking heat for a set of reform proposals that transparency and human rights advocates say miss the mark.
In a letter to the president released this week, Feinstein outlined a series of recommended reforms, for both Congress and the White House, to prevent the U.S. government from ever torturing again. While advocates praised her legislative proposals, they say her administrative recommendations do little to keep the administration or intelligence agencies from performing legal gymnastics to justify torture in the future.
“The proposal to the administration doesn’t sound like it’s written by someone who recognizes the fundamental problem,” said Katherine Hawkins, national security fellow at Open the Government and former investigator for the Detainee Task Force, which conducted its own study on the CIA's post-9/11 use of torture.
Feinstein's legislative proposals include codifying into law aspects of President Barack Obama's 2009 executive order outlawing torture. She also recommends legislation that would further specify the only permissible types of interrogation methods, which would close several loopholes that might enable torture going forward.
But while those reforms would strengthen the existing ban on torture, advocates say that outlawing torture isn't the problem.
“It is and always has been clear under U.S. law that torture is illegal. It is not as though the failure to have uniform standards for interrogations across agencies changed that,” said Laura Pitter, senior national security counsel for Human Rights Watch. Still, she added that "the critiques of [the proposal] shouldn’t overshadow the overall initiative, because it is a good initiative. ... Having uniform standards can’t hurt. It will only help reinforce the ban on torture.”
Indeed, torture was illegal long before the CIA, its lawyers and the George W. Bush administration embarked on what was to become one of the darkest chapters in the nation's history. The torture program was able to go forward not because the existing ban was too weak, but because a set of secret, tightly held legal memos artfully navigated that prohibition. Those memos, which essentially justified what was never supposed to be justifiable, weren’t provided by the executive branch to Congress until 2008, long after the torture program had ended.
The issue then isn’t whether torture is legal, though all agreed that codifying Obama's executive ban on torture and solidifying a set of humane interrogation techniques wouldn't hurt. Rather, the challenge is one of transparency: shedding enough light on future executive branches to keep them from performing the legal cartwheels that characterized the Bush White House's approach.
“Torture always was illegal. The laws against it could and should be straightened. But one of the major reasons it happened was that they were able to classify it," Hawkins said.
Feinstein’s administrative proposals, which she suggests the Obama White House institute on its own, do include transparency-related measures, such as bringing more White House lawyers in on certain legal memos and establishing a better system for declassifying information.
But that won’t do much, skeptics say. They note that Feinstein's recommendations to the White House do little to address the widespread Washington epidemic of over-classification and highly compartmentalized access to covert action programs. This problem, they believe, provided a veil of secrecy to the Bush White House and its chief spy agency.
“There’s virtually nothing about reforms to the classification system, which are so fundamental to what caused the problem ... It was secrecy that allowed [torture] to start, that allowed Congress to be kept in the dark, it’s secrecy that’s impeded prosecution,” Hawkins added. “That’s the sort of glue that holds all of this together.”
“It doesn’t really get to the core of this issue, at least that part of it,” agreed Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. “It’s basically saying do a better job ... As a recommendation, it’s kind of weak.”
The lack of classification reform isn’t surprising, advocates believe, given what they see as Feinstein’s general preference for secrecy over transparency.
“I don’t think that they solve the problem of secret interpretations at all,” said Naureen Shah, director of Amnesty International’s Security and Human Rights Program. “That’s not surprising, because for all Senator Feinstein has done to get the summary of the Senate torture report out, she’s really not done much at all about getting covert action [information] out to the public.”
But a Democratic aide to the Senate Intelligence Committee said that more clearly codified anti-torture statutes would ensure that future administrations' interpretations -- even if they were secret -- were consistent with what Congress intended. And the secrecy issue, the aide noted, is also addressed by Feinstein's recommendation to change the way the executive branch handles covert action programs.
“The legislation is vital for two reasons: first, to create the laws and legislative history that will ensure the Justice Department interprets laws in the manner intended by Congress, and second, to codify the executive order that currently prevents coercive interrogation techniques,” the aide said.
The aide added that Feinstein's administrative proposals also include sharing more covert program information with State Department officials and National Security Council personnel.
Beyond the shortcomings of the administrative recommendations, though, the bigger hurdle will be getting the White House to do anything about them at all. Enacting Feinstein’s proposals would essentially require the Oval Office to willingly hamstring its own ability to run covert operations.
And will the Obama administration ask for more oversight? Don’t hold your breath.
“The proposals to structure management of covert action within the executive branch are likely to be resisted. This is the president’s prerogative to consult whom he wants within the executive branch, and he can decline to consult who he wants,” Aftergood said.
“We are reviewing Senator Feinstein’s specific recommendations," National Security Council spokesperson Ned Price told The Huffington Post in a statement. "As a general matter, however, we share the Senator’s goal of ensuring the techniques that led to those recommendations are never employed again.”
It's also unclear whether Feinstein has a real shot at getting her legislative proposals through a Republican Congress. Most Senate Republicans staunchly rejected her committee's behemoth torture study -- upon which her recommendations are based -- as a partisan witch hunt.
Certain Republicans -- chief among them Arizona’s John McCain -- have backed Feinstein in her fight against torture. Still, with a new GOP majority, it doesn’t look promising, especially if the legislation would have to get through the Intelligence Committee, now led by Richard Burr (R-N.C.) Although Feinstein would only need to sway one Republican member in order to get the bill through committee, it would be a fight to make it happen on Burr’s watch. Along with blasting Feinstein’s study, the North Carolina Republican has backed the use of harsh interrogation techniques.
It’s unclear when exactly Feinstein plans to file her bill, though she said in the letter to Obama that she intends to officially propose the legislation at the beginning of this Congress.
This story has been updated to include comment from the National Security Council.