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UPDATE: On June 15, 2015, the Senate passed, with strong bi-partisan support by a vote of 78-21, the below amendment to the National Defense Authorization Act for Fiscal Year 2016: 

(Washington, DC - June 9, 2015) – Proposed legislation to reinforce the US prohibition on torture could help prevent the United States from again engaging in torture, Human Rights Watch said today. However, until the US criminally investigates and prosecutes past torture and those responsible for planning and authorizing it, there is a danger US officials will ignore the law, as they have in the past.

The legislation, introduced by US Senators John McCain and Dianne Feinstein, follows the release of a summary of a scathing Senate Intelligence Committee report on the Central Intelligence Agency’s abusive detention and interrogation program after the September 11, 2001 attacks. The proposed law would require all US government agencies to abide by rules in the Army Field Manual on Intelligence Interrogation, and to review and update the manual regularly to ensure that it reflects current best practice and complies with all US legal obligations. The law would also give the International Committee of the Red Cross (ICRC) “notification of, and prompt” access to, all prisoners held by the US in any armed conflict.

“Requiring the CIA and other US agencies to abide by one uniform set of interrogation rules will help prevent torture,” said Laura Pitter, senior national security counsel at Human Rights Watch. “But such legal fixes won’t carry weight in the future if those responsible for torture in the past aren’t brought to justice.”

Torture has long been illegal under US and international law. The US is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as other treaties that ban the use of torture and other ill-treatment. The Convention against Torture requires countries to criminalize the use of torture within their own jurisdiction. The US enacted such legislation in 1994, when Congress passed the federal anti-torture statute. The treaty also requires countries to conduct credible criminal investigations and prosecutions of those responsible for torture, and to ensure that torture victims have access to appropriate compensation, including rehabilitation.

In 2005, following revelations of torture by US forces at the Abu Ghraib prison in Iraq, Congress passed the Detainee Treatment Act, expressly barring the use of cruel, inhuman, or degrading treatment or punishment against any detainee in US custody and requiring Defense Department personnel to follow the Interrogation Manual for all interrogations. The McCain-Feinstein law would reinforce the ban on ill-treatment and torture and extend the application of the manual as the sole source of interrogation techniques to all US government agencies, including the CIA.

Providing for ICRC access and ensuring that the Interrogation Manual is periodically reviewed would also be important measures, Human Rights Watch said. During the post-9/11 period, the CIA abducted people from locations around the world, kept them in incommunicado detention, and did not provide ICRC access to them. Additionally, though the Interrogation Manual bars many forms of abusive treatment, its Appendix M still allows some abusive forms of sleep and sensory deprivation. For example, it permits limiting detainees to only four hours of sleep every 24 hours, permitting 40 hours of sleep deprivation at a time, potentially over an extended period. US officials have said that Appendix M would not be applied in a way that allows for such abuse but the text as written would still permit such practices. During the next Defense Department review process, the US should remove the provisions in Appendix M that allow for abuse through isolation or sleep and sensory deprivation that can amount to torture or ill-treatment, Human Rights Watch said.

“Congress should support McCain-Feinstein but much of the burden for preventing torture now rests with the executive branch,” Pitter said. “The Obama administration’s continued failure to act on criminal investigations and prosecutions risks sending the message that even though torture is a crime, those responsible will escape justice.”

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