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 organizing 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.
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 unacceptable under international human rights law."
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 waterboarding.
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 administration, 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.
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 waterboarding 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 waterboarding 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.