Outside editorial: A raging debate: Is waterboarding illegal?

Posted: Wednesday, February 13, 2008

The following editorial first appeared in the Chicago Tribune:

There has been a loud, emotional debate over the interrogation technique known as waterboarding. There's been so much talk, and so many angry accusations, that it would be easy for most Americans to believe that waterboarding is commonly used against terror suspects.

Not so. CIA Director Michael Hayden set the record straight on Tuesday. He said that the agency used waterboarding three times in the months after the Sept. 11 terrorist attacks, each time against suspected al-Qaida leaders. Each time, it was used in the belief that cataclysmic attacks on U.S. soil were imminent.

Interrogators used the technique, which makes a prisoner believe he is in imminent danger of drowning, on Khalid Shaikh Mohammed, described as the "driving force" behind the Sept. 11 attacks. They used it against Abu Zubaydah, a Palestinian linked to the millennium plot targeting Los Angeles International Airport. And against Abd al-Rahim al-Nashiri, called the mastermind of the USS Cole bombing.

"We used (waterboarding) against these three detainees because of the circumstances at the time," Hayden said. "There was the belief that additional catastrophic attacks against the homeland were inevitable. And we had limited knowledge about al-Qaida and its workings. Those two realities have changed."

The CIA, Hayden said, has not employed waterboarding in "just a few weeks short of" five years.

Yet from the political debate over this issue, one might think the technique is a regular tool in the arsenal of American intelligence interrogators. According to the government, it is not.

According to members of Congress, the practice is illegal under the 2005 law promoted by Sen. John McCain, R-Ariz., and signed by President Bush that prohibits "cruel, inhuman and degrading" treatment of prisoners. Waterboarding falls under that definition, McCain and other members of Congress said in a letter released last year during the confirmation fight over Attorney General Michael Mukasey.

Bush and Congress agreed in 2006 on rules for interrogating and trying suspected terrorists that prohibit waterboarding, according to Sen. Lindsey Graham, R-S.C., a veteran military lawyer.

Waterboarding also is prohibited under the U.S. Army Field Manual. Many experts believe it is illegal under the Geneva Conventions prohibiting torture.

But some members of Congress refuse to let this matter rest, and, unfortunately, the White House has created some confusion that helps to perpetuate the issue.

On Wednesday, a White House official said that waterboarding is legal and that the president could authorize the use of it. That would "depend on the circumstances," said White House spokesman Tony Fratto, including whether "an attack might be imminent." But a day later, Hayden said the agency banned the use of waterboarding in 2006. "In my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute," he said.

There is an answer to this. Waterboarding is illegal under U.S. law, and it will not and should not be employed in the normal course of U.S. interrogations of terrorism suspects.

But it is not beyond the realm of possibility that it could come into use in a case of extreme and imminent threat to the nation.

"The president may very well have constitutional authority to take extraordinary actions to protect the integrity and welfare of the U.S. - end of story," said Ron Allen, a Northwestern University law professor. "Most likely, that power, like the power to defend against imminentattack, simply can't be curtailed by any other branch of government."

That's not a neat and clean answer, and it's not an answer that suits anyone's purposes in the intense political debate over waterboarding. But it's the right answer.

Congress has declared that the United States will not use torture techniques. Congress may go one step further, with legislation that would require all 16 U.S. intelligence agencies to abide by the Army Field Manual's prohibition against waterboarding. That's sound policy and the right message to send to the rest of the world.

But the Constitution is not a suicide pact, as Supreme Court Justice Arthur Goldberg wrote nearly half a century ago. It is possible that a president under the most extreme circumstances would authorize extraordinary steps to protect the nation.

And if what was at stake was the prevention of a terrorist attack on the scale of Sept. 11, the nation would more than understand.

Is waterboarding illegal?



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