Correction to This Article
The original version of this column included quote marks in the second paragraph around what is a paraphrasing of remarks by White House spokesman Tony Fratto.
We Tortured and We'd Do It Again

By Dan Froomkin
Special to washingtonpost.com
Wednesday, February 6, 2008; 12:54 PM

After years of dodging and dissembling, the Bush administration today boldly embraced an interrogation tactic that's been an iconic and almost universally condemned form of torture since the Spanish Inquisition.

President Bush would authorize waterboarding future terrorism suspects if certain criteria are met, White House spokesman Tony Fratto said this morning, one day after the director of the CIA for the first time publicly acknowledged his agency's use of the tactic, which generally involves strapping a prisoner to a board, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning.

Olivier Knox writes for AFP: "The United States may use waterboarding to question terrorism suspects in the future, the White House said Wednesday, rejecting the widely held belief that the practice amounts to torture.

"'It will depend upon circumstances,' spokesman Tony Fratto said, adding 'the belief that an attack might be imminent, that could be a circumstance that you would definitely want to consider.'

"'The president will listen to the considered judgment of the professionals in the intelligence community and the judgment of the attorney general in terms of the legal consequences of employing a particular technique,' he said.

"His comments came one day after CIA director Michael Hayden for the first time admitted publicly that the agency had used 'waterboarding,' a practice that amounts to controlled drowning, to question three top al-Qaeda detainees nearly five years ago.

"After years of insisting that disclosing any specific interrogation techniques would harm US national security, US President George W. Bush 'authorized General Hayden to say what he said,' Fratto told reporters.

"'The cumulative impact of public discussion about that technique led to a consensus that an exception was warranted in this case,' the spokesman said."

Knox writes that Fratto "rejected charges that the tactics the Central Intelligence Agency calls 'enhanced interrogation techniques' amount to torture.

"'Torture is illegal. Every enhanced technique that has been used by the Central Intelligence Agency through this program was brought to the Department of Justice and they made a determination that its use under specific circumstances and with safeguards was lawful,' he said."

And here's the kicker: "Asked whether the White House's reasoning was that torture is illegal, the attorney general has certified that the interrogation practices are legal, therefore those practices are not torture, Fratto replied: 'Sure.'"

Yesterday's Testimony

Hayden yesterday told the Senate Intelligence Committee: "Let me make it very clear and to state so officially in front of this committee that waterboarding has been used on only three detainees. It was used on Khalid Sheikh Mohammed. It was used on Abu Zubaydah. And it was used on [Abd al-Rahim al-]Nashiri."

Hayden said the CIA had not used the technique for almost five years. "We used it against these three high-value detainees because of the circumstances of the time. Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent.

"In addition to that, my agency and our community writ large had limited knowledge about Al Qaida and its workings. Those two realities have changed."

But National Intelligence Director Mike McConnell told senators there was no reason waterboarding couldn't be used again.

"If there was a reason to use such a technique, you would have to make a judgment on the circumstances and the situation regarding the specifics of the event," McConnell said.

"And if such a desire was generated on the part of -- in the interest of protecting the nation, General Hayden would have to, first of all, have a discussion with me, and we would have a dialogue about whether we should go forward and seek legal opinion.

"Once we agreed to that, assuming we did, we would go to the attorney general, who'd make a ruling on the specifics of the situation. At that point, it would be taken to the president for a decision, and if a decision was taken, then the appropriate committees of the Congress would be so notified."

Durbin's Reaction

After Hayden's testimony yesterday, a prominent senator called on the Justice Department to open a criminal inquiry that could extend all the way to the White House.

Sen. Dick Durbin fired off an angry letter to Attorney General Michael Mukasey: "In light of your testimony that, 'There are circumstances where waterboarding is clearly unlawful,' the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated. You suggested during last week's hearing that you would not investigate these incidents because waterboarding was authorized by the Administration: 'It's a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations.' Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law."

Durbin vowed to block the nomination of the Justice Department's No. 2 official until he gets some answers.

Testimony Coverage

Siobhan Gorman writes in the Wall Street Journal (subscription required): "In a wide-ranging defense of some of the Bush administration's most controversial antiterrorism policies, top officials yesterday acknowledged for the first time that the Central Intelligence Agency has used waterboarding and named three terrorist suspects who underwent the harsh interrogation technique.

"The CIA said it doesn't use the tactic anymore, but officials left open the option of reinstating it. . . .

"Mark Lowenthal, a former senior CIA official who previously worked on Capitol Hill, said the debate over the aggressive antiterrorism tactics had become clouded by emotion and the administration brought forth the new details in an attempt to make its case more directly. 'They feel like this debate has become...somewhat difficult, and they want to get it back on track,' said Mr. Lowenthal."

Lara Jakes Jordan writes for the Associated Press: "Senate Democrats demanded a criminal investigation into waterboarding by government interrogators Tuesday after the Bush administration acknowledged for the first time that the tactic was used on three terror suspects. . . .

"Human Rights Watch, which has been calling on the government to outlaw waterboarding as a form of illegal torture, called Hayden's testimony 'an explicit admission of criminal activity.'

"Joanne Mariner, the group's counterterrorism director, said Hayden's testimony 'gives the lie' to the administration's claims that the CIA has not used torture. 'Waterboarding is torture, and torture is a crime,' she said.

"Critics say waterboarding has been outlawed under the U.N.'s Convention Against Torture, which prohibits treatment resulting in long-term physical or mental damage. They also say it should be recognized as banned under the U.S. 2006 Military Commissions Act, which prohibits treatment of terror suspects that is described as 'cruel, inhuman and degrading.' The act, however, does not explicitly prohibit waterboarding by name."

Walter Pincus writes in The Washington Post: "After the hearing, Hayden told reporters that the information obtained from those detainees amounted to a quarter of all the human intelligence the CIA gained about the terrorist organization between 2002 and 2006.

"'We would not have done it if it were not that valuable,' Hayden said."

Randall Mikkelsen writes for Reuters: "From the time of their capture in 2002 and 2003 until they were delivered to Guantanamo Bay prison in 2006, the two suspects accounted for one-fourth of the human intelligence reports on al Qaeda, Hayden said.

"Some analysts have questioned Mohammed's credibility under interrogation. But Hayden said most of the information was reliable and helped lead to other al Qaeda suspects."

Mark Mazzetti writes in the New York Times: "The C.I.A. is the only agency permitted under law to use interrogation methods more aggressive than those used by the American military. Senate Democrats sought to use the hearing to exploit divisions about those techniques.

"Both Robert S. Mueller III, director of the Federal Bureau of Investigation, and Lt. Gen. Michael D. Maples, director of the Defense Intelligence Agency, told lawmakers that their agencies had successfully obtained valuable intelligence from terrorism suspects without using what Mr. Mueller called the 'coercive' methods of the C.I.A.

"But General Hayden bristled when asked about Congressional attempts to mandate that C.I.A. interrogators be required to use the more limited set of interrogation methods contained in the Army Field Manual, which is used by military interrogators.

"'It would make no more sense to apply the Army's field manual to C.I.A.,' General Hayden said, 'than it would to take the Army Field Manual on grooming and apply it to my agency, or the Army Field Manual on recruiting and apply it to my agency. Or, for that matter, the Army Field Manual on sexual orientation and apply it to my agency.'"

Greg Miller writes in the Los Angeles Times: "National Intelligence Director J. Michael McConnell distanced himself from recent comments in a magazine article indicating he considered waterboarding a form of torture. The comments were taken out of context, he said.

"McConnell acknowledged the severity of the technique, saying that 'waterboarding, taken to its extreme, could be death.' But there are scenarios in which it might be employed, he said."

Paul Kiel of TPM Muckraker compares McConnell's statements yesterday with what he told the New Yorker's Lawrence Wright.

Yale Law Professor and blogger Jack Balkin interprets yesterday's testimony: "Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it."

Balkin then explains: "The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes. . . .

"Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

"This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. . . .

"It is worth recalling that at his recent hearings Attorney General Mukasey refused to explain the legal basis for why the CIA interrogation techniques (including waterboarding) are not illegal, arguing that the legal explanations themselves are classified, so that no one can know what the laws are."

Be Very Afraid

Yesterday's comments about torture came during a hearing about the administration's latest threat assessment report.

Mark Mazzetti writes in the New York Times that McConnell's central message yesterday was that "Al Qaeda is gaining in strength from its refuge in Pakistan and is steadily improving its ability to recruit, train and position operatives capable of carrying out attacks inside the United States."

McConnell "told lawmakers that Osama bin Laden and his deputy, Ayman al-Zawahri, remained in control of the terrorist group and had promoted a new generation of lieutenants. He said Al Qaeda was also improving what he called 'the last key aspect of its ability to attack the U.S.' -- producing militants, including new Western recruits, capable of blending into American society and attacking domestic targets."

Salon blogger Glenn Greenwald translates McConnell's message this way: "We better forget about checks and balances and oversight and restraints of any kind and everything else and just make sure that the President can spy on our emails and telephone calls with no oversight, otherwise Al Qaeda is going to slaughter us in our Homeland. And we also better make sure that telecommunications corporations don't have consequences when they break the law, otherwise we're doomed, because Al Qaeda is coming."

FISA Watch

Lara Jakes Jordan writes for the Associated Press: "President Bush threatened a veto Tuesday in the debate to update terrorist surveillance laws, assailing Democratic plans to deny protection from lawsuits for telecommunications providers that let the government spy on U.S. residents after the Sept. 11, 2001, attacks.

"The threat came in a 12-page letter to Senate leaders from Attorney General Michael Mukasey and National Intelligence Director Mike McConnell. It was issued as lawmakers prepare to vote on legislation seeking to update a 1978 surveillance law without violating privacy rights."

Here's the letter, via blogger emptywheel.

"'If the president is sent a bill that does not provide the U.S. intelligence agencies the tools they need to protect the nation, the president will veto the bill,' wrote Mukasey and McConnell. . . .

"The administration's veto threat was aimed at amendments that would bar retroactive immunity to phone companies and other telecom providers that have given the government access to e-mails and phone calls linked to people in the United States. Without the retroactive protections, the letter noted, telecom providers might be unwilling to help the government track down terror suspects in the future as they were asked to do in the days following the 2001 attacks.

"'Private citizens who respond in good faith to a request for assistance by public officials should not beheld liable for their actions,' Mukasey and McConnell wrote."

Walter Pincus writes in The Washington Post that another of the controversial amendments "would require the attorney general and the director of national intelligence to certify that any surveillance the government conducts 'is limited to communications' involving specific individual targets reasonably believed to be outside the United States.

"A third would require that a special court approve surveillance if a 'significant purpose' of that effort is to acquire the communications of a person reasonably believed to be inside the United States.

"The latter two are meant to prevent unauthorized government spying on U.S. citizens and residents. But McConnell and Mukasey complained that they would create 'unacceptable operational uncertainties and problems,' hindering intelligence-gathering when a foreign terrorist overseas is calling into the United States."

State Secrets Watch

Paul Elias writes for the Associated Press: "Bush administration lawyers cited national security concerns Tuesday in urging a federal judge to toss out a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA secretly fly terrorism suspects to overseas prisons to be tortured.

"The American Civil Liberties Union sued Jeppesen Dataplan Inc. last year in San Jose federal court, accusing it of aiding the CIA in the 'forced disappearance, torture and inhumane treatment' of five suspected terrorists in violation of national and international laws. The ACLU alleges that Jeppesen, based in San Jose, knowingly participated in the program by supplying aircraft, crews and logistical support to the CIA flights.

"On Tuesday, Justice Department lawyers asked U.S. District Judge James Ware to toss the lawsuit without further litigation because of unspecified national security risks. . . .

"ACLU lawyers argued Tuesday that . . . security concerns are trumped because the rendition program is public knowledge. . . .

"On Tuesday, Assistant U.S. Attorney Michael Abate said Bush and other high-ranking officials have discussed the program only in broad terms and that 'this did not declassify any of the specifics.'"

Signing Statements Watch

The Dallas Morning News editorial board writes: "One has to wonder: What's the point of having a Congress if the president believes he can pick and choose which of its laws apply to him?....

"If the president believes a bill is unconstitutional, he has a responsibility to veto it. If he signs it into law, he has a responsibility to obey its provisions, not just the ones he likes. To do otherwise is to undermine the rule of law and the confidence of the people in their government. This reckless expansion of executive branch power sets a precedent Congress and the nation will come bitterly to regret."

Bush's Impact on the Election

Michael Gerson writes in his Washington Post opinion column: "The revival of McCain's campaign was possible for one reason: the revival of American fortunes in Iraq. . . .

"McCain's stubbornness on Iraq is transformed by the calendar into courage. The issue that was supposed to dominate the campaign and destroy the Republicans has helped to elevate a strong Republican candidate. And in spite of past bad blood between President Bush and McCain, it was Bush's decision on the surge that allowed McCain's remarkable comeback. If we ever see a President McCain, he will have President Bush to thank."

Harold Meyerson writes in his Washington Post opinion column: "A more direct affront to the Republican strategy devised by Karl Rove -- to build support within the party's right-wing base and then try to win over just enough moderates to carry elections -- cannot be imagined.

"McCain's whole campaign is anti-Rovian. His core supporters are Republican moderates and Republican-inclined independents, and then he picks off enough conservatives to prevail. . . .

"With his preemptive war and seemingly permanent occupation in Iraq, and his attempt to privatize Social Security, George W. Bush pushed American conservatism past the point where the American people were willing to go -- pushed them, in fact, to the point where they recoiled at the conservative project. . . .

"The conservative agenda has been winnowed down to supporting what remains of Bushism. That's not only a losing formula for November, it also means that intellectually, conservatism is running on empty."

Andrew Greeley writes in his Chicago Sun-Times opinion column that "the GOP will be the party of war and the Democrats the party of peace, in a situation in which the war is overwhelmingly unpopular.

"One more beautiful political achievement for the present incumbent of the White House."

DailyKos blogger Kagro X suggests the story behind all the enormous voter turnout: "Everyone hates Bush, and they literally cannot wait for his presidency to be over. Any symbolic step they can take toward pushing him out of the White House and out of their minds can't come soon enough for them."

Budget Watch

At least one constituency is happy with Bush's budget

Bill Rigby writes for Reuters: "Top U.S. defense company executives welcomed President George W. Bush's record-setting arms budget proposal on Tuesday. . . .

"Defense firms like Lockheed Martin Corp and Raytheon Co have thrived -- and their share prices soared -- in almost five years since U.S.-led forces invaded Iraq on the back of ballooning defense spending. . . .

"Bush on Monday proposed a $515.4 billion budget for the Defense Department's 2009 fiscal year, up 7.5 percent from this year and setting a record in dollar terms. . . .

"The Pentagon's proposed budget includes full funding for key Lockheed plane programs, such as the F-35 and F-22 fighter jets and the C-130J transport plane, quashing fears that high-profile, big-ticket programs might get pruned."

And the defense contractors are apparently confident that even if a Democratic president ends the war in Iraq, it will still pay dividends for years.

"Robert Stevens, chief executive of Lockheed, the U.S. largest defense contractor . . . acknowledged that an accelerated withdrawal of troops from Iraq, as proposed by leading Democratic presidential hopeful Barack Obama, 'will impact funds flows' to military contractors.

"Yet he stressed the next priority was replacing worn-out equipment: 'The last number of years, at a very high operational tempo, really has used the useful life of a lot of systems. It's time to replace those systems as well.'"

Missing E-Mail Watch

The New York Times editorial board blogs about the White House e-mail scandal: "We suppose that there could be some innocent explanation for all of this, but it has at least a whiff of Watergate. Back then, of course, all that went missing was 18 1/2 minutes of audio tape. Now, it appears to be 10 million e-mails. The Bush administration may have a lot more to hide -- or it could simply be a testament to the proliferation of incriminating information in an age of e-mail."

Karl Rove Watch

Joel Achenbach blogs for The Washington Post about Karl Rove's inaugural appearance as a Fox News commentator yesterday: "Instant review, subject to revision: As a pundit, Rove is a strikingly bland presence on TV. A big vanilla wafer of a man."

Jon Stewart talked to Fox Anchor Chris Wallace about Rove's new gig. "Do you think that now that he's there, Fox News will now get access to this administration?" Stewart asked.

Wallace asked if Stewart had a message he'd like delivered to Rove. "Does lying feel bad?" Stewart suggested. "Just ask him. Just say, when he's talking . . . just lean in every now and then and say: 'Lying. Does a little piece of you die inside when you do it?'"

Stewart suggested that "it's probably difficult to have him as a contributor because in your heart, wouldn't you want to say: 'Hey, remember when you said you weren't involved in the Plame thing? You were kind of involved.' . . Or wouldn't you want say, 'Hey, remember when that study came out and said you guys lied like 935 times about Iraq?'"

Cartoon Watch

Tony Auth on Bush's relevance; Mike Luckovich on Bush's shoes; Tom Toles on Bush's repossession; Daniel Wasserman on turnout; Nick Anderson, Ben Sargent and Dwane Powell on the Bush budget legacy.

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