A senior Justice Department official says laws and other limits enacted since three terrorism suspects were waterboarded has eliminated the technique from what is now legally allowed, going a step beyond what CIA Director Michael Hayden has said.
“The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.
“There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said. It is the first time the department has expressed such an opinion publicly.
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.
Bradbury’s testimony comes 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 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, where Bush has promised to veto any bill that restricts CIA questioning.
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.
Bradbury’s comments go a step further than Hayden’s last week. In testimony before the House Intelligence Committee, the CIA director 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 it requires the consent of the attorney general and president on a case-by-case basis.
On the Net:
House Judiciary Constitution subcommittee: https://judiciary.house.gov/committeestructure.aspx?committee7
Detainee Treatment Act of 2005: https://www.cfr.org/publication/9865/