February 25, 2010 | The Weekly Standard

Congressional Democrats Take Aim at Interrogators

Co-Authored with Stephen F. Hayes

Update: A press release from Pete Hoekstra's office indicates that the House bill has been pulled because of opposition to the provision targeting interrogators. 

Late Wednesday, congressional Democrats inserted (at the last minute) a section into the intelligence authorization bill titled, “Cruel, Inhuman, and Degrading Interrogations Prohibition Act of 2010.” The section ostensibly outlaws the types of interrogation tactics (e.g. waterboarding) used by CIA interrogators on senior al Qaeda terrorists and even specifies prison sentences starting at a minimum of 15 years for those who do.

But, why are Democrats doing this now? No detainee has been waterboarded for years. And President Obama took the so-called enhanced interrogation techniques (EITs) off the table in January 2009, when he issued an executive order limiting interrogators to the Army Field Manual. So, we can be certain that the most controversial techniques are not being employed currently anyway.

Moreover, congressional Democrats had the opportunity to object to the EITs when they were actually being employed. Senior congressional leaders from both parties were briefed on the EITs on numerous occasions and the Democrats did not object. (The closest they apparently got was a letter from Congresswoman Jane Harman in 2003 – which is not really an objection at all.)

Ironically, congressional sources say the Republicans tried to introduce a measure that would have provided for additional disclosure of the EIT briefings, but the Democrats rejected it.

So, again, why are the Democrats doing this now?

It is not clear. But the Act has implications that go far beyond the use of the EITs.

There is great ambiguity over what constitutes “cruel, inhuman, and degrading” treatment. And the Act does nothing to clear up this gray area. The Act specifies certain techniques the Democrats think should be off limits, but those techniques are not clearly defined. For example, the Democrats want “prolonged isolation” to be criminalized as an interrogation technique. But “prolonged isolation” is not defined further and could be interpreted any number of ways.

In the criminal justice system, it is worth remembering, solitary confinement is typically used as a disciplinary tool. Here, in the interrogation context, it may very well rise to the level of “torture” under the Democrats’ open-ended phrase “prolonged isolation.”

The same goes for “depriving the individual of necessary food, water, sleep, or medical care.” Where does one draw the line on the amount of “necessary” sleep? Let’s say interrogators are questioning a detainee late into the night, and he says he is tired and wants to go to sleep. Are interrogators supposed to stop questioning him – even if they think he has timely, actionable intelligence on an impending attack? Is 6 hours of sleep per night sufficient, or do detainees need 8?

The Act prohibits interrogators from “[e]xploiting phobias of the individual.” But federal authorities threatened to place Najibullah Zazi’s mother in jail as a coercive measure to induce cooperation. While this was perhaps not one of Zazi’s “phobias,” it certainly was something that caused him great fear – enough reportedly to get him to cooperate. What constitutes a “phobia?” Are all of the detainee’s fears (e.g. spending a lifetime in jail) off-limits?

The Act also prohibits all hooding of detainees. Hooding is frequently necessary when moving detainees for a variety of security reasons, but that is now torture according to congressional Democrats. 

After listing a number of ill-defined techniques that would now be criminal, the Democrats warn that “[a]ny act that causes pain or suffering to an individual equivalent to the acts described” would also earn an interrogator a prison sentence. But this just adds to the ambiguity as this could be construed to include all sorts of mild interrogation tactics that fall far short of “cruel, inhuman and degrading.”

This is a real problem. If this Act becomes law, it will surely cause confusion for interrogators who want to know where the line is, precisely, lest they be thrown in jail. This creates risk aversion among interrogators where none is warranted.

The Act also contains this 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.”

With that, the Democrats would like to short-circuit the lively debate in this nation over whether the unique circumstances of the post-9/11 world required interrogation techniques beyond the Army Field Manual and the FBI’s tactics.  The CIA and the previous administration determined that yes, in fact, alternative interrogation techniques were required. But now, years after the fact, and after having failed to object previously, congressional Democrats want to change the answer to “No.”

More importantly, suppose President Obama or another future president decides that more aggressive interrogation techniques are necessary to get a dangerous, high value detainee to talk. The president would now have to get Congress to repeal its ill-informed law just to progress with the senior terrorist's interrogation. (It is one thing for a president to rescind an executive order. It is quite another to get Congress to change its laws.)

Then, there is this “finding”:

    Torture and cruel, inhuman, and degrading treatment do not produce consistently reliable information and intelligence, and are not acceptable practices because their use runs counter to our identity and values as a nation.

Many of the most severe techniques the Democrats include in the “torture…cruel, inhuman, and degrading” category were used on Khalid Sheikh Mohammed. In the days, weeks, and months following the most severe interrogations of KSM, numerous terrorists were rounded up and terrorist attacks foiled. (See, for example, here and here.) The CIA has consistently pointed to the value of the intelligence gleaned from senior al Qaeda terrorists placed in the enhanced interrogation program. And even President Obama’s own Director of National Intelligence, Dennis Blair, has conceded that the interrogations using EITs produced “high value” intelligence. 

Therefore, it is simply dishonest to claim that these techniques, as employed by the CIA’s professionals, did not “produce consistently reliable information and intelligence.”

There is plenty of room for honest debate on interrogations, including what techniques should and should not be used. But the congressional Democrats apparently do not want to have that debate and instead prefer to use underhanded legislative tactics.

Stephen F. Hayes is a senior writer at THE WEEKLY STANDARD. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.