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 legally 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."
It is the first time the department has expressed such an opinion publicly. CIA Director Michael Hayden stopped short of making a similar statement in testimony about waterboarding before Congress last week.
Bradbury in 2005 signed two secret legal memos that authorized the Central Intelligence Agency to use head slaps, freezing temperatures and waterboarding when questioning terror detainees. Because of that, Senate Democrats have opposed his nomination by President George W. Bush to formally head the legal counsel's office.
Bradbury's testimony came as majority Democrats in Congress try to clamp down on interrogation methods that can be used on terrorism suspects.
Congress on Wednesday moved to prohibit the CIA from using waterboarding and other harsh tactics, despite Bush's threat to veto any measure that limits the agency's interrogation techniques. The Republican-led White House on Thursday renewed the veto threat.
White House press secretary Dana Perino said the standoff poses a basic question for Americans: "They'll have to ask themselves, 'Do you trust the intelligence community more than you trust Democrats who are beholden to their left wing?' And that's the debate that this country is going to have."
Tactics outlawed for breaking prisoners
The prohibition was contained in a bill authorizing intelligence activities for the current year, which the Senate approved 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 House had approved the measure in December. Wednesday's Senate vote set up a confrontation with the White House.
The legislation bars the CIA from using waterboarding, sensory deprivation or other harsh coercive methods to break a prisoner who refuses to answer questions. Those practices were banned by the military in 2006.
In testimony before the House Intelligence Committee, CIA Director Hayden acknowledged for the first time publicly that the CIA has used waterboarding against three prisoners.
Waterboarding still on CIA books
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 it requires the consent of the attorney general and president on a case-by-case basis.