Why Won't Senator Feinstein Call Torture Torture?

from the questions-questions dept

There’s been a lot of great commentary already about the brouhaha between the Senate and the CIA regarding Senator Dianne Feinstein’s allegations that the CIA has, in essence, spied on the activities of the Senate’s intelligence oversight committee.  I just want to add a few thoughts.

First, it’s fair to wonder why the Senate is calling its own inquiry a report on the CIA’s “detention and interrogation program.”  Feinstein herself acknowledges her staff members have been “wading through the horrible details of a CIA program that never, never, never should have existed.”  A horrible program that should never have existed?  Does that sound like detention and interrogation… or like torture and imprisonment?

In fact, the word “torture” appears not once in Feinstein’s remarks.  Think of the linguistic dexterity required to deliver a 12-page-speech about a CIA torture program and a Senate investigation into that program without even once mentioning the word torture!  It would be like me writing this blog post without once mentioning the name “Feinstein.”  I wouldn’t know how to do it, and I’m almost in awe of the propagandists who do.

Second, it was a little weird to hear Feinstein describe the “need to preserve and protect the Internal Panetta Review,” if only because “preserve and protect” is the language the Constitution mandates for the President’s oath of office:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”  It’s almost as though some people think an obligation to protect secrecy is as important as an oath to defend the Constitution.

Third, so much security!  “[T]he committee staff securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.”  I couldn’t help remembering this:

Fourth, if Senator Feinstein really is as outraged as she says, and really wants the Senate’s report on the CIA’s imprisonment and torture program to be declassified, all she needs to do is introduce the report into Congressional proceedings.  She would have full immunity via the Constitution’s speech or debate clause, and there’s even precedent — Senator Mike Gravel did precisely this with the Pentagon Papers in 1971.  Or Senator Lindsey Graham, who says Congress “should declare war on the CIA” if the spying allegations are true (wouldn’t an actual Congressional declaration of war be refreshing?), could do the same.  Maybe the Senators are slightly less outraged than they profess?

Fifth, and most insidiously, note that the overseers of this country are still peddling the notion that torture is merely a policy choice, and not a crime.  In this regard, Feinstein said, “if the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.”

No.  If Feinstein or anyone else is serious about ensuring America never again engages in institutional torture, it is imperative that the Justice Department (it’s gotten so hard not put square quotes around that phrase) investigate who ordered what Feinstein calls “an un-American, brutal program… that never, never, never should have existed” (hint: this would not be hard); to prosecute those people; and to imprison them if they are found guilty of violating America’s laws against torture.  Anything else is implicit and unavoidable acknowledgment that torture is not a crime, merely a policy choice with which Dianne Feinstein happens to disagree.  And the notion that merely persuading people that torture is bad is the right way to prevent it from happening again is illogical, ahistorical, and, as Feinstein might put it if she were thinking a little more clearly or had slightly different priorities, unAmerican, too.

Cross-posted from Barry Eisler’s blog: The Heart of the Matter: Why Won’t Senator Feinstein Call Torture Torture?

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Comments on “Why Won't Senator Feinstein Call Torture Torture?”

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35 Comments
Ninja (profile) says:

It would be like me writing this blog post without once mentioning the name “Feinstein.”

She-who-shall-not-be-named?

Think of the linguistic dexterity required to deliver a 12-page-speech about a CIA torture program and a Senate investigation into that program without even once mentioning the word torture!

Maybe it was [Redacted]?

NEVER underestimate the ability people have to live in denial!

mcinsand (profile) says:

did CIA or NSA hit some Feinstein paydirt?

Could the sudden disappearance of Feinstein’s recently-acquired spine have anything to do with spying on senators and senatorial staff members? Maybe someone found something on Feinstein that she wanted kept quiet; ‘we just found this little tidbit of information. It’d be a shame if the public found it out. Are you sure you want to aggressively pursue that torture report?’

zip says:

It seems Dianne Feinstein adheres to the official Bush regime’s definition of torture, as developed by John Yoo and Jay Bybee:

“Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

So there, waterboarding is not torture (as long as it’s done to people we don’t like).

John Fenderson (profile) says:

Re: Re: Re: Re:

“I do hope they haven’t forgotten about psychological torture.”

No, they haven’t forgotten. They’ve done their level best to make sure that psychological torture isn’t considered torture at all, so they can keep doing it. They don’t even hide it! They brag about tortures like extended isolation, sleep deprivation, etc.

Anonymous Coward says:

To address the author’s points:

First, whether or not Senator Feinstein used the “torture” is a superficial detail not worth two paragraphs. She already said it was horrible.

Second, classified information needs to be protected in the general case. Classification levels do not distinguish between “classified” and “classified, but should be released to the public because Barry says so”. Protecting the Panetta review by following the rules for handling classified information makes Feinstein’s argument much stronger than it would be had she breached protocol.

Third, this is acceptable under the current rules for handling classified information. Classfied information can’t be locked up forever inside the building in which it was created so there are rules for transporting it.

Fourth, I’m unfamiliar with this so I’ll give you the benefit of the doubt.

Fifth, laws are introduced through the legislative branch, so if our beloved elected officials want to legalize torture, then it is no longer a crime. Sadly, it is a policy choice.

John Fenderson (profile) says:

Re: Re:

“whether or not Senator Feinstein used the “torture” is a superficial detail not worth two paragraphs. She already said it was horrible.”

I disagree. This is a point of critical importance. “Torture” is unambiguously illegal. “Horrible” is not.

“laws are introduced through the legislative branch, so if our beloved elected officials want to legalize torture, then it is no longer a crime.”

Not true. Torture is unconstitutional (eighth amendment). Unless the Constitution is modified, torture is always illegal regardless of what laws Congress may pass. That’s why the government goes to great pains to argue that what they do isn’t actually torture.

sorrykb (profile) says:

Re: Re:

First, whether or not Senator Feinstein used the “torture” is a superficial detail not worth two paragraphs. She already said it was horrible.

It is not superficial. It matters. It matters because Senator Feinstein, like those who instituted and carried out this program, knew full well that calling this abuse by its true name could lead to public recrimination as well as, possibly (and certainly justifiably), to prosecution. It matters because they used twisted language like “enhance interrogation techniques” to cover up an illegal and immoral policy of systematic and deliberate brutality. And it matters because allowing them to get away with this makes us all complicit.

And as to your point about torture as a crime: The U.S. is a party to the Convention Against Torture. So, yes. It’s a crime.

AricTheRed says:

It would be easy!

“It would be like me writing this blog post without once mentioning the name “Feinstein.” I wouldn’t know how to do it, and I’m almost in awe of the propagandists who do.”

Just replace her name with “that constition shredding bitch representative from the San Francisco bay area”

Oh wait, not specific enough. Nevermind. I guess you’re right.

Barry Eisler (profile) says:

Thanks for the Comments

Thanks for the thoughts, everyone. It?s always an honor to have something posted here at TechDirt.

Ninja, ?She-who-shall-not-be-named? would have been perfect. 🙂

Mcinsand, I?m not sure whether Feinstein?s spine is corroding or strengthening. In fact, I suspect that ?Is she growing a spine or wilting?? isn?t the right question to ask. Something bigger is playing out here, I sense, but I confess I haven?t been able to come up with a satisfactory description of what it is. Maybe another blog post.

Anonymous Coward #6, agreed, “why won’t she call unlawful spying, unlawful spying?? is another worthwhile question. It?s possible she was trying to be exceptionally precise by referring to a ?search,? perhaps because she claims ?search? is what Brennan had already copped to. Note that Brennan has denied ?spying? and ?hacking,? which are somewhat amorphous terms, so maybe she was trying to pen him in. That said, agreed, she could have at least said ?unlawful search.? Instead, she said ?unauthorized search.? At a minimum, she does seem to have a habit of choosing the least offensive descriptions available.

Halley, thanks, scare quotes was indeed what I meant. Re-reading the piece I saw several other typos as well. Yesterday was a crazy day and I didn?t proof as carefully this time as I usually do. Apologies for that.

Anonymous Coward #9 said, “whether or not Senator Feinstein used the ‘torture’ is a superficial detail not worth two paragraphs. She already said it was horrible.?

Can?t agree with you on that. Words have a lot of power. Many things are horrible. Torture is uniquely so. Also horrible things are not necessarily illegal. Torture is.

Would you be equally comfortable with a politician consciously refusing to call rape rape, and instead referring merely to ?horrible unilateral physical intimacy?? What?s the difference, as long as he acknowledged what happened was horrible?

“Protecting the Panetta review by following the rules for handling classified information makes Feinstein’s argument much stronger than it would be had she breached protocol.? Agreed. I was really just teasing about the ?securely transported from the secure facility to the secure facility.? What?s the vector, Victor? I hope it didn?t seem I was suggesting classified information doesn?t need to be secured. I wasn?t.

?Laws are introduced through the legislative branch, so if our beloved elected officials want to legalize torture, then it is no longer a crime. Sadly, it is a policy choice.?

But our beloved officials have not legalized torture. Refusing to prosecute a crime doesn?t make the crime non-criminal. See the links in my post.

Just got to comments #13 and #14? John and SorryKB, I see you?ve made similar points. Thanks.

bshock says:

let's not mince words

Senator Diane Feinstein is a nexus of corruption.

Feinstein has betrayed her constituents.

Feinstein has betrayed the U.S. Constitution.

Feinstein sees herself as a “civil master” rather than a “civil servant,” as indicated by her double standards in dealing with almost any form of rights. She has the right to privacy — we, the masses, do not.

Traitor Feinstein’s corruption goes much further and deeper than that, but I hesitate to muddy the primary issue with a discussion of her personal ethical and legal violations. Suffice it to say that she is a disgrace to the state of California and the United States of America.

Barry Eisler (profile) says:

Psychological Torture

Regarding psychological torture, Jeff Kaye made a great point over at my blog:

Great article, Barry, but I do have a quibble.

You wrote, “If Feinstein or anyone else is serious about ensuring America never again engages in institutional torture…”

But actually, the US does still practice institutional torture via its Army Field Manual, and especially its Appendix M. One effect of all the concentration on the CIA and its own program, is that attention skips over the ways in which a torture program centered around use of isolation, sleep and sensory deprivation, manipulation of fears, manipulation of environment and diet, inculcation of hopelessness and helplessness (“Futility”) and use of drugs — all of which is allowed in the Army Field Manual — continues unabated.

The current use of torture, based on long-studied psychological forms of torture, was instituted by Obama via executive order as THE rules by which interrogation is practiced.

For more, readers can see my recent Guardian column: http://t.co/uxRs94IaUJ

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