Has Obama banned torture? Yes and no

As a presidential candidate in 2008, then-Sen. Barack Obama vowed to roll back President George W. Bush’s controversial interrogation and detention practices. Soon after taking office the following year, Obama appeared to make good on those promises, ordering the closure of the Guantánamo Bay detention facility within a year and banning the use of brutal interrogation techniques.

Now, several years on, the picture is less rosy. Guantánamo remains open, and provisions in a new military spending bill just signed into law by Obama, the National Defense Authorization Act for 2016 (NDAA), make it harder to close the facility. Unless Obama invokes his executive authority to bypass Congress’ restrictions, it seems that Guantánamo will survive into the next administration.

More positively for his legacy, the NDAA imposes further restrictions on abusive interrogations and helps fulfil his original campaign promise to stop torture.

But why ban torture now, one might ask? And wasn’t it banned already, at least until Bush threw out the rulebook?

Last year the Senate Select Committee on Intelligence released the summary of a much larger report on the Central Intelligence Agency’s post-9/11 interrogation program. Sen. Dianne Feinstein, who chaired the committee at the time, issued recommendations based on the Senate study, one of which called for tighter laws against torture. Obama had already banned the CIA’s torture techniques via executive order in 2009, but — as Feinstein has pointed out — a future president could easily rescind that order.

While it is true that torture was already forbidden by a range of federal statutes, those are sometimes vague and contain loopholes that allowed Bush’s lawyers to justify waterboarding and other harsh tactics. Previous laws, such as the federal torture statute and the Detainee Treatment Act, prevent the CIA from engaging in torture or cruel, inhuman or degrading treatment or punishment, but nowhere was it specified which methods were allowed or prohibited. This enabled Bush’s team to interpret the law broadly to permit what it called enhanced interrogation techniques, on the grounds that such techniques don’t amount to cruelty or torture if employed with appropriate safeguards.

Taking action on the committee’s recommendations, Feinstein and Republican Sen. John McCain sponsored an amendment — supported by Obama — to the NDAA that does a thorough job of plugging the gaps. It largely codifies Obama’s executive order, insisting that all government personnel, including CIA interrogators and private contractors, abide by rules set down in the Army Field Manual. The manual repeatedly forbids torture and cruelty and prohibits a list of enhanced techniques once used by the CIA, including waterboarding and prolonged sleep deprivation.

This solidifies similar instructions in Obama’s order, helping spell out clearly which interrogation techniques are off-limits. From now on, government lawyers may not interpret the law to allow sleep deprivation for days in a row, for example, as that practice is specifically barred by the amendment. The new law goes further than the executive order: While that order applied only to armed conflicts, the amendment covers all scenarios. One issue remains unaddressed, however: the U.S. still follows its own, overly broad interpretation of the United Nations Convention Against Torture, loosening the treaty’s restrictions.

Obama’s order allows the CIA to detain prisoners on a “transitory basis”; the new law does not prohibit CIA detention. However, it grants the International Committee of the Red Cross (ICRC) access to all U.S. government detention facilities, preventing the use of top secret black sites like those run by the CIA after 9/11. Faced with greater scrutiny, the agency might be more hesitant to torment prisoners, but the Red Cross cannot disclose its findings to the public, and torture has occurred at Bagram air base and Guantánamo despite ICRC visits. The Pentagon is said to have run a network of clandestine prisons in Afghanistan, where abuse has been alleged despite Red Cross access.

The amendment does not ban extraordinary rendition, in which prisoners are sent abroad to be held and possibly tortured by foreign governments. The Obama administration has never repudiated this practice; it has only vowed to seek assurances from foreign governments that they will not torture prisoners transferred to their custody. Although we have no evidence that suspected enemies have been flown off to countries such as Egypt and tortured under Obama, as they were under Bush and President Bill Clinton, captives have been transferred from U.S. custody in Afghanistan to facilities run by the Afghan security forces where many allege torture took place. More recently, prisoners caught in Iraq with U.S. assistance have reportedly been mistreated. The new law does not regulate such transfers or renditions at all — a glaring omission, given the recent past.

The Army Field Manual, which now sets the standard for government interrogators, is flawed. Although it bans many “enhanced interrogation techniques,” it leaves room for other coercive practices. The main text suggests techniques that could be intimidating or humiliating. A special appendix added in 2006 could allow for more aggressive methods authorized by Secretary of Defense Donald Rumsfeld after 9/11, such as prolonged isolation or sleep and sensory deprivation.

Numerous rights groups, along with the U.N., have criticized these parts of the manual, saying they could inflict serious psychological harm and amount to torture. The document suggests that “behavioral science consultants” help interrogators probe detainees, but the American Psychological Association recently voted to bar its members from playing such a role. Moreover, according to new research on interrogation techniques, methods in the manual are ineffective in eliciting information from captives, and former interrogators have called for sweeping changes.

The new law, to its credit, has clearly taken account of these criticisms. It orders Obama’s High-Value Detainee Interrogation Group to produce a public report on effective, science-based interrogation techniques and to recommend revisions to existing doctrine. It also orders the secretary of defense to conduct a review of the manual to ensure its tactics are effective and legally compliant. The original bill insisted this review take place no later than one year after the law was passed, but in conference that period was extended to three years.

In a statement in October, Feinstein explained the extension by saying that some members of Congress felt extra time was needed to conduct a thorough review. The administration can revise the manual whenever it wants but has never rectified widely criticized portions of the document, such as the appendix, despite their alleged illegality. Given the lack of reform thus far and the delayed review process, it seems increasingly unlikely that the manual will be overhauled as its critics desire.

One final problem: Laws are futile if they are not enforced. During his time in office, Obama has failed to punish former members of the Bush administration for prisoner abuse, even though Obama admitted that “we tortured some folks.” Not only has the Justice Department declined to prosecute any Bush officials, but it has also repeatedly invoked state-secrets privilege to stop civil litigation brought by torture victims. Without the deterrent provided by possible criminal prosecution, future presidents might feel they can torture with impunity.

Obama has taken important steps to end torture, but the door remains ajar. If prisoners are tortured once again, people might well ask, Why didn’t he close it?