Murky waters of torture

After years of refusing public comment on a particularly harsh CIA interrogation method, top Bush administration officials have suddenly begun pressing a controversial argument that it was legal for the CIA to strap prisoners to a board and pour water over their face to make them believe they were being drowned.

The issue promises to play a role in the historic military prosecution of six Al Qaida detainees for allegedly organising the September 11 attacks in cases described by the Defence Department recently.

One of the six detainees, Khalid Shaikh Mohammad, was subjected to the technique known as waterboarding after his capture in 2003 and four of the others were subjected to different “enhanced interrogation'' tactics by the CIA.

If the information the CIA collected is used in court, defence attorneys may attack it as tainted and unlawful. If the government relies instead on evidence the FBI collected in voluntary interrogations — using the CIA information as a road map — defence attorneys could still allege that the material is unlawful.

The government's defence of the waterboarding episodes leaves open the possibility that, under the right conditions, the CIA could decide to use the tactic again.

The strategy appears to be aimed at ensuring that CIA interrogators don't face criminal prosecution for using harsh interrogation methods that top White House and Justice Department lawyers approved in the months after the September 11 attacks.

Because waterboarding was deemed legal at the time by the Justice Department, Attorney General Michael Mukasey told lawmakers, he has no grounds to launch a criminal probe of the practice.

United States Supreme Court Justice Antonin Scalia echoed the administration's view when he said in a BBC Radio interview that some physical interrogation techniques could be used on a suspect in the event of an imminent threat, such as a hidden bomb about to blow up.

“It would be absurd to say you couldn't do that,'' Scalia said. “And once you acknowledge that, we're into a different game: How close does the threat have to be? And how severe can the infliction of pain be?''

White House spokesman Tony Fratto told reporters: “Any technique that you use, you use it under certain circumstances. It was something that they felt at that time was necessary, and they sought legal guidance to make sure that it was legal and that it was effective.''

Controversy followed CIA director Michael Hayden's confirmation recently that three Al Qaida prisoners were subjected to waterboarding in 2002 and 2003. Hayden, Fratto and other Bush administration officials left open the possibility that President Bush could authorise the use of simulated drowning again but conceded that recent court rulings and legislation might not allow it.

The flurry of statements prompted fierce criticism from Democrats as well as strong condemnations from abroad. Manfred Nowak, the United Nations special rapporteur on torture, said recently that the use of waterboarding is “unjustifiable'' and “absolutely unacceptable under international human rights law''.

Waterboarding usually involves pouring water over a captive's mouth and nose while he is strapped to an inclined board, with his head lower than his feet and a piece of cloth or cellophane placed over his face. Use of the tactic and its variations is barred by the US Army Field Manual for the handling of military prisoners.

But White House and Justice Department officials have said that the CIA was acting lawfully when it used the tactic. At the time, they noted, administration lawyers, led by then-White House counsel and future attorney general Alberto Gonzales, had concluded that Al Qaida prisoners were not covered by protections of the Geneva Conventions.

But as Mukasey and other officials acknowledged, the legal landscape has changed since 2003. The US Supreme Court ruled in 2005 that the Geneva protections apply to Al Qaida prisoners. Subsequent legislation from Congress barred cruel, inhuman and degrading treatment of captives.

In Senate testimony recently, for example, Mukasey emphasised that while waterboarding might be prohibited under some circumstances, it might be allowed if it did not “shock the conscience''.

Mukasey described the matter as “a balancing test of the value of doing something as against the cost of doing it'', and refused lawmakers' demands that he render an absolute verdict on its legality.

Fratto, in remarks to reporters recently, amplified the point by asserting that waterboarding could be legal if the government believed it was under imminent threat.

The Military Commissions Act of 2006, which governs the trial that is being sought for Mohammad and the other defendants, also bars use of evidence obtained through torture.

But the term is undefined in the statute and it is unclear whether the commission would side with the Bush administration, which defends waterboarding, or the military, which forbids it.

Most human rights groups and many lawyers who specialise in interrogation and detention laws maintain that waterboarding is torture, regardless of how carefully it is done — because the victims are threatened with imminent death.

But David B. Rivkin Jr, a Justice Department official in the Reagan era, said officials may be justified in using the tactic to prevent terrorist attacks in a time of imminent danger. “If you do something when you've suffered an attack and you are expecting another attack any day, that is a very different context than something that you do for 20 years consistently,'' he said.

The CIA said recently that it had been five years since it last used waterboarding and that it has not been on its list of approved techniques since 2006. But the Bush administration has said it opposes bills pending in Congress to explicitly bar any future use of the tactic.