Official: Waterboarding illegality is not absolute

February 14, 2008 12:12:21 PM PST
A senior Justice Department official told Congress on Thursday that laws and other limits enacted since three terrorism suspects were waterboarded have eliminated the technique from what is now allowed. "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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