While America is Distracted by Health Care Summit The House is Going to War Against the CIA

While we are all distracted by the health care summit the House has decided to declare war on the CIA.  Just before the debate began on the 2010 Intelligence Authorization Act (H.R. 2701) it was learned that the progressive Democrats have slipped into the bill a new provision that would establish criminal punishments for CIA agents and other intelligence officials who engage in "cruel, inhuman and degrading treatment" during interrogations.

The amendment, called the "Cruel, Inhuman And Degrading Interrogations Prohibition Act" of 2010, lists several prohibited acts, including waterboarding, "forcing the individual to be naked, perform sexual acts, or pose in a sexual manner", beatings, electric shocks, use of dogs, inducing hypothermia or heat injury, stress positions, deprivation of necessary "sleep, food or medical care" and conducting mock executions. Other banned acts include using the threat of force to "coerce an individual to desecrate that individual's religious artifacts," excessive cold or heat, cramped confinement, prolonged isolation, and use of hooding.

The amendment also creates criminal sanctions for medical professionals who assist in such interrogations. According to the language of the amendment, "any medical professional who in the course of or in anticipation of a covered interrogation knowingly commits or attempts to commit an act of medical malfeasance with the intent to enable an act of cruel, inhuman, and degrading treatment" would also face criminal sanctions. An act of "medical malfeasance" adds five years to the original offense.

Byron York urgently reported the existence of the amendment this afternoon, he said it had already been inserted into the bill and quoted a House Intelligence Committee staffer, presumably from the minority side, who said Republicans would try to strip the measure out of the bill, but not before they tell "people what's going on."

"This was done without committee review and without any feedback or input from the CIA," says the House source. "It just showed up in the middle of the night. It specifically targets those who are keeping us safe. It doesn't respond to what happened at Ft. Hood or Detroit. Instead, it targets the CIA for new criminal punishments."

 Andrew McCarthy adds:

The provision is impossibly vague — who knows what “degrading” means? Proponents will say that they have itemized conduct that would trigger the statute (I’ll get to that in a second), but it is not true. The proposal says the conduct reached by the statute “includes but is not limited to” the itemized conduct. (My italics.) That means any interrogation tactic that a prosecutor subjectively believes is “degrading” (e.g., subjecting a Muslim detainee to interrogation by a female CIA officer) could be the basis for indicting a CIA interrogator.

The act goes on to make it a crime to use tactics that have been shown to be effective in obtaining life saving information and that are far removed from torture.

“Waterboarding” is specified. In one sense, I’m glad they’ve done this because it proves a point I’ve been making all along. Waterboarding, as it was practiced by the CIA, is not torture and was never illegal under U.S. law.  The reason the Democrats are reduced to doing this is: what they’ve been saying is not true — waterboarding was not a crime and it was fully supported by congressional leaders of both parties, who were told about it while it was being done. On that score, it is interesting to note that while Democrats secretly tucked this provision into an important bill, hoping no one would notice until it was too late, they failed to include in the bill a proposed Republican amendment that would have required full and complete disclosure of records describing the briefings members of Congress received about the Bush CIA’s enhanced interrogation program. Those briefings, of course, would establish that Speaker Pelosi and others knew all about the program and lodged no objections. Naturally, members of Congress are not targeted by this criminal statute — only the CIA.

More to the point, this shows how politicized law-enforcement has become under the Obama Democrats. They could have criminalized waterboarding at any time since Jan. 20, 2009. But they waited until now. Why? Because if they had tried to do it before now, it would have been a tacit admission that waterboarding was not illegal when the Bush CIA was using it. That would have harmed the politicized witch-hunt against John Yoo and Jay Bybee, a key component of which was the assumption that waterboarding and the other tactics they authorizied were illegal. Only now, when that witch-hunt has collapsed, have the Democrats moved to criminalize these tactics. It is transparently partisan.

In any event, waterboarding is not defined in the bill. As Marc Thiessen has repeatedly demonstrated, there is a world of difference between the tactic as administered by the CIA and the types of water-torture methods that have been used throughout history. The waterboarding method used by the CIA involved neither severe pain nor prolonged mental harm. But it was highly unpleasant and led especially hard cases like Khalid Sheikh Mohammed (i.e., well-trained, committed, America-hating terrorists) to give us information that saved American lives. The method was used sparingly — on only three individuals, and not in the last seven years. The American people broadly support the availability of this non-torture tactic in a dire emergency. Yet Democrats not only want to make it unavailable; they want to subject to 15 years’ imprisonment any interrogator who uses it.

What’s more, the proposed bill is directed at “any officer or employee of the intelligence community” conducting a “covered interrogation.” The definition of “covered interrogation” is sweeping — including any interrogation done outside the U.S., in the course of a person’s official duties on behalf of the government. Thus, if the CIA used waterboarding in training its officers or military officers outside the U.S., this would theoretically be indictable conduct under the statute.

Waterboarding is not all. The Democrats’ bill would prohibit — with a penalty of 15 years’ imprisonment — the following tactics, among others:

- “Exploiting the phobias of the individual”

- Stress positions and the threatened use of force to maintain stress positions

- “Depriving the individual of necessary food, water, sleep, or medical care”

- Forced nudity

- Using military working dogs (i.e., any use of them — not having them attack or menace the individual; just the mere presence of the dog if it might unnerve the detainee and, of course, “exploit his phobias”)

- Coercing the individual to blaspheme or violate his religious beliefs (I wonder if Democrats understand the breadth of seemingly innocuous matters that jihadists take to be violations of their religious beliefs)

- Exposure to “excessive” cold, heat or “cramped confinement” (excessive and cramped are not defined)

- “Prolonged isolation”

- “Placing hoods or sacks over the head of the individual”

Naturally, all of these tactics are interspersed with such acts as forcing the performance of sexual acts, beatings, electric shock, burns, inducing hypothermia or heat injury — as if all these acts were functionally equivalent.

In true Alinskyite fashion, Democrats begin this attack on the CIA by saluting “the courageous men and women who serve honorably as intelligence personnel and as members of our nation’s Armed Forces” who “deserve the full support of the United States Congress.” Then, Democrats self-servingly tell us that Congress “shows true support” by providing “clear legislation relating to standards for interrogation techniques.” I’m sure the intelligence community will be duly grateful.

Democrats also offer “findings” that the tactics they aim to prohibit cause terrorism by fueling recruitment (we are never supposed to discuss the Islamist ideology that actually causes terrorist recruitment, only the terrible things America does to provide pretexts for those spurred by that ideology). These “findings” repeat the canards that these tactics don’t work; that they place our captured forces in greater danger (the truth is our forces captured by terrorists will be abused and probably killed no matter what we do, while our enemies captured in a conventional war will be bound to adhere to their Geneva Convention commitments — and will have the incentive to do so because they will want us to do the same); and that “their use runs counter to our identity and values as a nation.”

The bottom line is that the progressives are willing to put your kids and mine in greater to score political points. They are looking for ways to go to war against the CIA for the worst crime ever, serving under a president they did not like. Shame on them, not only for the amendment, but for slipping it into a bill while everyone is distracted by the Health Care Summit.