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March 10, 2008

Just Waterboarding Under the Bridge


by William Fisher

U.S. President George W. Bush appeared headed toward another train wreck with Congress as he carried out his threat to veto an intelligence bill that would have banned the Central Intelligence Agency from using waterboarding and other "enhanced interrogation techniques" in questioning terrorism suspects.

The bill, passed by both the House of Representatives and the Senate, would have limited the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would have ended the use of simulated drowning, temperature extremes, and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001 attacks.

Congress does not appear to have the votes to override the Bush veto, which he announced in his weekly radio address on Saturday. His support comes principally from Senate Republicans, including the Republican presidential nominee, Sen. John McCain.

McCain was one of the principal authors and champions of the Detainee Treatment Act of 2006, which banned harsh interrogation techniques by the U.S. military, but did not cover the CIA. President Bush signed the bill into law, but issued a "signing statement" claiming executive authority to ignore the law if it was necessary for national security purposes.

"Staging a mock execution by inducing the misperception of drowning is a clear violation" of laws and treaties, McCain said at the time.

But McCain sided with the Bush administration on the waterboarding ban by the CIA. He said the measure went too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding.

Human rights activists have been sharply critical of McCain's vote. Typical is Michael Ratner of the Center for Constitutional Rights, a legal advocacy group that has defended a number of detainees at Guantanamo Naval Base in Cuba and mobilized pro-bono legal representation for many others.

He told IPS, "That Senator McCain voted against the legislation ending torture – which included a ban on water torture – gives lie to the assertion that he cares about fundamental human rights. He is a craven opportunist and worse, an aider and abettor of torture."

The two Democratic presidential contenders, Senators Hillary Rodham Clinton and Barack Obama, have said waterboarding is clearly illegal and should be banned, but neither voted on the Senate measure because they were campaigning elsewhere.

The Senate passed the bill during the same week in which the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.

Bush's veto is the latest battle in the administration's war with Congress on the limitations placed by the U.S. Constitution on the executive branch of government. Under the Constitution, Congress is a co-equal branch, as is the judiciary. Bush has claimed that the Constitution requires him to protect and defend the U.S. people, and that this responsibility requires greatly expanded powers for the White House.

Another ongoing power battle with Congress involved the president's authorization of the National Security Agency (NSA), one of 16 U.S. intelligence organizations, to conduct surveillance of telephone and e-mail messages without court approval. In 1978, Congress passed the Foreign Surveillance Act (FISA), which set up a special court and required the administration to secure warrants from that court based on a showing of probable cause. Without approval from the FISA court, President Bush launched a "terrorist surveillance" program shortly after the attacks of 9/11, recruiting private telecommunications companies to assist in that effort.

Congressional action on a FISA revision is currently being blocked by a debate about whether these telecom companies should receive "retroactive immunity" from prosecution, though President Bush claims they broke no laws.

Waterboarding has become a proxy for these types of expanded executive branch powers. A Justice Department (DOJ) senior official, Steven G. Bradbury, acting head of the DOJ's Office of Legal Counsel, recently joined his boss, Attorney General Michael Mukasey, in testifying to congress that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

Waterboarding, a form of mock drowning, has been prosecuted as torture in the U.S. for more than a century. After World War Two, the U.S. prosecuted Japanese soldiers who used the technique against U.S. prisoners of war

But human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture.

Prof. David Cole of the Georgetown University law school told IPS, "It is a tragedy of historic dimensions that the president of the United States has now stood up for torture. After repeatedly insisting that 'we don't torture,' President Bush has vetoed a bill that would have held the executive branch accountable to that promise. We can only hope that Congress has the will to override this bill, and that the American people have the will to elect a president who is truly committed to getting the CIA out of the torture business." Cole is one of the nation's preeminent Constitutional scholars.

His view is echoed by Mary Shaw of Amnesty International USA, who told IPS that "Use of waterboarding and other 'enhanced interrogation techniques' is in clear violation of several domestic and international laws and treaties. The Bush administration must be stopped from using the 'war on terror' as an excuse to violate basic human rights. Congress must not let the veto stand."

A view about what Congress can do in the face of the president's veto was expressed by the CCR'S Ratner. He told IPS that Congress "does not need a veto-proof two-thirds majority to cut funds off from any U.S. agency, e.g., the CIA that engages in practices not authorized by the Army Field Manual. It simply does not need to fund torture – 51 votes are enough to end funding in the Senate or a similar bare majority in the House."

"The charade of a Democratic Congress blaming Bush alone for the torture program is just that – a charade," he added.

The Army manual forbids eight harsh techniques, including waterboarding, mock executions, use of beatings and electric shocks, forced nakedness and sexual acts, and causing hypothermia or heat injuries.

Some of the most vocal criticism of the Bush administration's stance on torture has come from former military leaders. More than 30 three- and four-star retired generals have urged the adoption of a single interrogation standard, and warned that the use of abusive interrogation techniques is both ineffective and unwise.

The latest to take this position is retired Brig. Gen. James Cullen, former chief judge of the U.S. Army Court of Criminal Appeals. He recently told Amy Goodman, a radio talk show host, "We hear a lot of arguments to try to justify 'enhanced interrogation techniques,' but we know exactly what we're talking about. It's torture in different packaging." He said "torture is just a stupid way of going about it."

Other military leaders have taken similar positions. Gen. David Petraeus, commanding general of multinational forces in Iraq, recently called the military's interrogation techniques an effective and humane way to gather information from the enemy.

(Inter Press Service)

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  • William Fisher writes for Inter Press Service.

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