Criminalizing and Banning the EITs that Have Kept America Safe

Impeach Bush. War criminals. Cheney, Halliburton and torture. Illegal war. Spying on Americans. Secret prisons. shredding of our Constitution. Sacrificed our values. Bush lied, people died. Waterboarding is torture.

Rather than seeing things in terms of "policy differences", those further to the left of President Obama (hard to believe that's possible, I know- but now he has to govern) still seek to appease their moveon.org base by prosecuting persecuting those they believe participated in criminal activity under the Bush Administration. They believe that Bush hurt America's moral standing in the world.

A bit over a week ago, Bush lawyers Yoo and Bybee were cleared of any professional misconduct, which arguably is not the case for their accusers.

Also a week ago Wednesday, while all eyes were turned to the healthcare summit, Rep. Jim McDermott tried by means of Intelligence Committee Chairman Sylvester Reyes "manager's amendment", to slip unnoticed into the House intelligence authorization bill a provision entitled “Cruel, Inhuman, and Degrading Interrogations Prohibition Act of 2010”. This amendment would criminalize future interrogators (up to including the death penalty) for what has already been abolished by President Obama: enhanced interrogations.



But thanks to bipartisan opposition and congressional Republicans led by Rep. Pete Hoekstra, they get a "D" for effort:

With no hearings or public debate, Intelligence Committee Chairman Sylvester Reyes included a provision sponsored by Rep. Jim McDermott called the “Cruel, Inhuman, and Degrading Interrogations Prohibition Act of 2010” in the intelligence bill, which would have banned a raft of poorly-defined interrogation techniques (including waterboarding) and specified prison sentences starting at a minimum of 15 years for intelligence officials who use them. His efforts met with instant opposition from congressional Republicans, led by Rep. Pete Hoekstra, and apparently faced opposition from the Obama administration as well. By late Thursday night the intelligence bill had been pulled.

The episode holds a few lessons: First, it is an acknowledgement by congressional Democrats that the Bush administration was right when it found that waterboarding and other enhanced interrogation techniques were not illegal under existing U.S. laws—if they were already illegal, there would be no need to pass legislation making them illegal today.

Second, it is telling that Democrats felt they had to try to slip this provision into the intelligence bill in secret, while the whole city was otherwise occupied. The bill had no review in the intelligence committee, and the CIA was given no opportunity to examine the legislation or present its views. This shows that Democrats realize most Americans disagree with them on the question of terrorist interrogation, or else they would have no problem with open debate.

Finally, the episode raises a question: Why now? No terrorist has been waterboarded for seven years. President Obama has eliminated all enhanced interrogation techniques by executive order, and required that all interrogations follow the Army Field Manual. Pelosi and congressional Democrats did not object to waterboarding when it was taking place, but now seven years later they want to pass legislation banning it along with a raft of other techniques?

Gregory D. Lee:

Apparently, Rep. McDermott and his friends on the intelligence committee want to remove any opportunity to use EITs again. Passing a law attaching criminal penalties for using EITs would mean it would literally take an act of Congress to repeal it if this or a future president decided there was a sudden need to use them.

For example, a high-value terrorist is captured and brags to his CIA interrogators that there is a crude nuclear weapon somewhere in the U.S. that will go off tomorrow. He says he knows the exact location of the bomb, but refuses to disclose it. The terrorist agrees to take a polygraph examination to prove the veracity of his claim, and passes with flying colors. The president is informed and, like the CIA, is convinced the threat is genuine. What should the president do?

If left up to Rep. McDermott, the president could not legally order the use of EITs to extract the exact location of the nuclear weapon. In fact, if the president ordered interrogators to use EITs, whether or not he obtained the information that saved thousands of American lives, he and the interrogators would be subject to imprisonment.

To Rep. McDermott, waterboarding, placing a bug in terrorists’ confined quarters, sleep deprivation, exploiting a phobia or anything else that humanely persuades terrorists to disclose actionable intelligence, must to be outlawed. In fact, the act includes the sentence, “The moral standards that reflect the values of the United States governing appropriate tactics for interrogations do not change according to the dangers that we face as a nation” (emphasis added). Therefore, even if my scenario happened, interrogators could not use EITs without risking prison.

Originally posted at Flopping Aces