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White House Pushes Waterboarding Rationale

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THE PROGRESSIVE REVIEW - February 14, 2008
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White House Pushes Waterboarding Rationale
By Dan Eggen
The Washington Post

Administration may be trying to shore up prosecution of 
terrorism suspects. 

After years of refusing public comment on a particularly 
harsh CIA interrogation method, top Bush administration 
officials have suddenly begun pressing a controversial 
argument that it was legal for the CIA to strap prisoners 
to a board and pour water over their face to make them 
believe they were being drowned. 

The issue promises to play a role in the historic military 
prosecution of six al-Qaeda detainees for allegedly organiz-
ing the Sept. 11, 2001, attacks, in cases described by the 
Defense Department on Monday. One of the six detainees, 
Khalid Sheik Mohammed, was subjected to the technique known 
as waterboarding after his capture in 2003, and four of the 
others were subjected to different "enhanced interrogation" 
tactics by the CIA. 

If the information the CIA collected is used in court, 
defense attorneys may attack it as tainted and unlawful. 
If the government relies instead on evidence the FBI 
collected in voluntary interrogations - using the CIA 
information as a road map - defense attorneys could still 
allege that the material is the "fruit of a poisonous 
tree" and unlawful. 

The government's defense of the waterboarding episodes, 
laid out in congressional testimony and administration 
statements over the past two weeks, relies on a complex 
legal argument that many scholars and human rights 
advocates say is at odds with settled law barring conduct 
that amounts to torture, at any time or for any reason. 
It also leaves open the possibility that, under the right 
conditions, the CIA could decide to use the tactic again. 

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The strategy appears to be aimed primarily at ensuring that 
no CIA interrogators face criminal prosecution for using 
harsh interrogation methods that top White House and 
Justice Department lawyers approved in the months after 
the Sept. 11 attacks. Because waterboarding was deemed 
legal at the time by the Justice Department, Attorney 
General Michael B. Mukasey told lawmakers, he has no 
grounds to launch a criminal probe of the practice. 

Supreme Court Justice Antonin M. Scalia echoed the 
administration's view when he said in a BBC Radio interview 
yesterday that some physical interrogation techniques could 
be used on a suspect in the event of an imminent threat, 
such as a hidden bomb about to blow up. "It would be absurd 
to say you couldn't do that," Scalia said. "And once you 
acknowledge that, we're into a different game: How close 
does the threat have to be? And how severe can the 
infliction of pain be?" 

White House spokesman Tony Fratto told reporters last week: 
"Any technique that you use, you use it under certain 
circumstances. It was something that they felt at that 
time was necessary, and they sought legal guidance to make 
sure that it was legal and that it was effective." 

Such detailed commentary on a classified interrogation 
program marks a departure for the administration, which 
for years had refused to confirm the use of waterboarding. 
Officials asserted that American lives would be put at 
risk if information about such an aggressive interrogation 
method were disclosed. 

Controversy quickly followed CIA Director Michael V. 
Hayden's confirmation last week that three al-Qaeda 
prisoners were subjected to waterboarding in 2002 and 
2003. Hayden, Fratto and other Bush administration 
officials left open the possibility that President Bush 
could authorize the use of simulated drowning again, but 
conceded that recent court rulings and legislation might 
not allow it. 

The flurry of statements prompted fierce criticism from 
Democrats as well as strong condemnations from abroad. 
Manfred Nowak, the United Nations special rapporteur on 
torture, said last week that the administration's use of 
waterboarding is "unjustifiable" and "absolutely unaccept-
able under international human rights law." 

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Waterboarding usually involves pouring water over a 
captive's mouth and nose while he is strapped to an 
inclined board, with his head lower than his feet and a 
piece of cloth or cellophane placed over his face. Use 
of the tactic and its variations has long been condemned 
by the State Department, and it is explicitly barred by 
the U.S. Army Field Manual for the handling of military 
prisoners.

But White House and Justice Department officials have said 
that the CIA was acting lawfully when it used the tactic. 
At the time, they noted, administration lawyers, led by 
then-White House counsel and future attorney general 
Alberto R. Gonzales, had concluded that al-Qaeda prisoners 
were not covered by protections of the Geneva Conventions. 

As a result, lawyers who reviewed the tactic at the Justice 
Department's Office of Legal Counsel looked narrowly at 
whether the technique constituted torture, which is defined 
by statute as infliction of "severe" physical or mental 
pain or suffering on a captive. 

A pair of memos by that office concluded that waterboarding 
was not torture, possibly because its use was monitored and 
limited by someone with medical training whose role was to 
limit the severity of the pain. Those memos, one of which 
is still secret, paved the way for the CIA to use water-
boarding. 

But as Mukasey and other officials acknowledged, the legal 
landscape has changed since 2003. The Supreme Court ruled 
in 2005, for example, that the Geneva protections apply 
to al-Qaeda prisoners, and subsequent legislation from 
Congress barred cruel, inhuman and degrading treatment of 
captives. The net effect was to require the Bush administr-
ation, which had opposed the Supreme Court's position, to 
adhere to legal standards barring conduct that is less 
severe than torture as legally defined. 

In Senate testimony last month, for example, Mukasey 
emphasized that while waterboarding might be prohibited 
under some circumstances, it might be allowed if it did 
not "shock the conscience." That phrase was coined by the 
Supreme Court in a 1952 ruling against police brutality, 
which provoked criticism because it imposed an inherently 
subjective due-process standard. But it was implicitly 
embraced in legislation approved last year. 

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Mukasey described the matter as "a balancing test of the 
value of doing something as against the cost of doing it," 
and refused lawmakers' demands that he render an absolute 
verdict on its legality. Fratto, in remarks to reporters 
last week, amplified the point by asserting that water-
boarding could be legal if the government believed it 
was under imminent threat. 

But many legal experts say that such a "sliding scale" 
approach applies only to proscriptions against cruel, 
inhuman or degrading treatment, which ranks a step below 
torture in U.S. and international human rights law. Philip 
B. Heymann, who was a deputy attorney general in the 
Clinton administration and now teaches at Harvard Law 
School, said the Bush administration is "trying to act 
as if they have wiggle room even if they don't." 

"There's a plausible argument that there's a sliding 
scale, but only if you have arrived at the position that 
it's not torture," Heymann said. "There is no sliding 
scale for torture." 

Unlike less severe abuse, torture is clearly banned by 
federal statute and international treaty, a fact that 
Mukasey acknowledged in testimony last week. "The torture 
statute applies across the board," he said, adding later 
that the prohibition is a "bright line." 

The Military Commissions Act of 2006, which governs the 
trial that is being sought for Mohammed and the other 
Sept. 11 defendants, also expressly bars the use of 
evidence obtained through torture. But the term is 
undefined in the statute, and it is unclear whether the 
commission would side with the Bush administration, which 
defends waterboarding, or the military, which forbids it. 

Most human rights groups and many lawyers who specialize 
in interrogation and detention laws maintain that water-
boarding is torture, regardless of how carefully it is 
done - because some pain is inflicted and victims are 
essentially coercively threatened with imminent death. 
"Virtually the entire rest of the world, including... every 
legislator who has spoken to the question, has concluded 
that waterboarding is categorically unlawful," former 
Office of Legal Counsel lawyer Martin S. Lederman said in 
a blog posting Friday. 

But David B. Rivkin Jr., a Justice Department official in 
the Reagan era, said officials may be justified in using 
the tactic to prevent terrorist attacks in a time of 
imminent danger. "If you do something when you've suffered 
a horrible attack and you are expecting another attack any 
day, that is a very different context than something that 
you do for 20 years consistently," Rivkin said. 

The CIA said last week that it had been five years, almost 
to the day, since it last used waterboarding and that it 
has not been on its list of approved techniques since 2006. 
But the Bush administration has said it opposes bills 
pending in Congress to explicitly bar any future use of 
the tactic. 

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