Yet, Nelson's royalist interpretation of the commander-in-chief clause is not the only thing that would cancel the purported effect of the intelligence bill. Rather than directly prohibit water-boarding and other aggressive techniques, the relevant language (in Section 327) said intelligence officers may not use "any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations."
The problem with this -- if you truly want to prohibit water-boarding, etc. -- is that the text of the Army Field Manual is not controlled by Congress. It is controlled by the executive, which can change it whenever it wants -- and thus change the techniques that would, or would not be, prohibited by the bill. Republican Sen. Kit Bond of Missouri, ranking member of the Intelligence Committee, and committee member Orrin Hatch of Utah both noted this on the Senate floor.
"I must point out," said Hatch, "that Army Field Manuals are subject to revision by the executive at any time, so that we in Congress are acting a little too self-satisfied by this simple gesture if we actually believe we are rectifying the rule of law."
This fact may seem fantastical -- especially to those on the left who thought Democrats were doing their bidding -- but it is a fact nonetheless. Is it true, I asked the Republican staff of the Senate Intelligence Committee, that the executive can change the Army Field Manual -- and thus the interrogation techniques allowable under the vetoed intelligence bill -- without congressional approval?
"Yes," said the committee staff. "It can be changed without coming back to Congress."
Ironically, the bill might have increased aggressive interrogation -- not by, but of, U.S. intelligence officers. It required, for example, that the directors of the National Security Agency and the National Reconnaissance Office undergo Senate confirmation. It created yet another inspector general for the intelligence community -- even though every intelligence agency already has an inspector general. And, as Sen. Jon Kyl of Arizona pointed out, it mandated that the administration report to Congress on "the identity of each and every official who has determined that any interrogation method complies with specific federal statutes" and "why the official reached the conclusion."
What would congressional Democrats do with these names? They would find a way to make them talk, of course.