Official: Waterboarding illegality is not absolute
WASHINGTON (AP) - February 14, 2008 "The program as it is authorized today does not include
waterboarding," Steven G. Bradbury, acting head of the Justice
Department's Office of Legal Counsel, told the House subcommittee
on the Constitution.
"There has been no determination by the Justice Department that
the use of waterboarding under any circumstances would be lawful
under current law," he added.
However, under questioning later, Bradbury added that the
department also hasn't determined whether it would be unlawful.
"The department, as I've tried to indicate, has not had occasion
to address the question since the enactment of these new laws."
It is the first time the administration has gone that far.
CIA Director Michael Hayden stopped short of making a similar
statement in testimony about waterboarding before Congress last
week. Attorney General Michael Mukasey said last month that the
question is unresolved.
By not opining one way or another on the current legality of
waterboarding, Bradbury's office leaves unclear whether the
administration sees any circumstances under which it could legally
authorize the procedure.
Bradbury in 2005 signed two secret legal memos that authorized
the CIA to use head slaps, freezing temperatures and waterboarding
when questioning terror detainees. Because of that, Senate
Democrats have opposed his nomination by President Bush to formally
head the legal counsel's office.
His testimony comes as majority Democrats in Congress try to
clamp down on interrogation methods that can be used on terrorism
suspects.
Bradbury's department does not make laws, but issues opinions
for Mukasey and produces legal advice requested by the White House
on executive orders, proclamations and other presidential actions.
Bush has made clear the administration does not torture. But he
also has threatened to veto a bill that prohibits the CIA from
using waterboarding and other harsh tactics, saying he won't sign
legislation that limits the agency's interrogation tactics.
Civil libertarians say waterboarding is illegal whether blessed
by the Justice Department or not.
"It is, was and should remain illegal under numerous laws and
treaties," said Caroline Frederickson, director of the ACLU
Washington Legislative Office.
The prohibition was approved by the House in December and rolled
into a bill authorizing intelligence activities for the current
year, which the Senate passed on a 51-45 vote. It would restrict
the CIA to the 19 interrogation techniques outlined in the Army
field manual. That manual prohibits waterboarding, a method that
makes an interrogation subject feel he is drowning.
The legislation bars the CIA from using waterboarding, sensory
deprivation or other harsh coercive methods to break a prisoner who
refuses to answer questions. The military banned those practices in
2006.
In testimony before the House Intelligence Committee, CIA chief
Hayden acknowledged for the first time publicly that the CIA has
used waterboarding against three prisoners.
Hayden said current law and court decisions, including the
Detainee Treatment Act of 2005, cast doubt on whether waterboarding
would be legal now. Hayden prohibited its use in CIA interrogations
in 2006; it has not been used since 2003, he said.
The Detainee Treatment Act of 2005 prohibited cruel, inhuman and
degrading treatment for all detainees in U.S. custody, including
CIA prisoners.
Waterboarding is still officially in the CIA tool kit but using
that technique requires the consent of the attorney general and
president on a case-by-case basis.
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On the Net:
House Judiciary Constitution subcommittee:
http://judiciary.house.gov/committeestructure.aspx
Detainee Treatment Act of 2005:
http://www.cfr.org/publication/9865/
