US:Congress is now on a collision course with the White House over 'enhanced interrogation' methods, writes Dan Eggenin Washington
The US Senate has voted to ban waterboarding and other harsh interrogation tactics used by the CIA, matching a previous House vote and putting Congress on a collision course with the White House over a pivotal national security issue.
In a 51-45 vote, the Senate on Wednesday approved an intelligence Bill that limits the CIA to using 19 less aggressive interrogation tactics outlined in the US Army Field Manual.
The measure would effectively ban the use of simulated drowning, temperature extremes, forced standing, and other harsh tactics that the CIA used on al-Qaeda prisoners following the 9/11 attacks.
President Bush has said he will veto the legislation, which the House approved in December, and Congress may not have adequate votes to override that veto.
In the Senate, the move to ban coercive techniques at the CIA follows two weeks of intense public debate over the agency's use of waterboarding, a type of simulated drowning, on three al-Qaeda prisoners in 2002 and 2003.
It also comes in the week that the administration announced plans to try six prisoners at Guantánamo Bay for alleged involvement in the 9/11 attacks.
CIA director Michael Hayden said in testimony last week that the agency no longer uses waterboarding, but declined to say if the tactic would be legal under current statutes.
Other Bush administration officials have indicated they want to preserve the CIA's ability to use harsh tactics in the future.
In a statement to Congress in December, the Office of Management and Budget said a ban "would prevent the United States from conducting lawful interrogations of senior al-Qaeda terrorists to obtain intelligence needed to protect Americans from attack".
But human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture. "This legislation will ensure that the United States no longer employs interrogation methods it would condemn if used by our enemies against captured Americans," said Elisa Massimino, Washington director of Human Rights First.
The army manual specifically forbids eight harsh techniques, including waterboarding, mock executions, the use of beatings and electric shocks, keeping prisoners naked, forcing them into sexual acts and causing hypothermia or heat injuries.
The issue promises to play a role in the Guantánamo prosecution. Khalid Sheik Mohammed was subjected to 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 lawyers may attack it as tainted and unlawful. If the government relies instead on evidence the FBI collected in voluntary interrogations - but relying on the CIA information for background - defence lawyers might still be able to claim that it is the "fruit of a poisonous tree" and unlawful.
The US government's defence of the waterboarding episodes, laid out in congressional testimony and administration statements over the past two weeks, appears to be aimed primarily at ensuring that no CIA interrogators face criminal prosecution for using harsh interrogation methods that top White House and Justice Department lawyers approved in the months after the 9/11 attacks.
Because waterboarding was deemed legal at the time by the Justice Department (they contended that al-Qaeda prisoners were not covered by the Geneva conventions), attorney general Michael Mukasey told lawmakers he had no grounds to launch a criminal probe of the practice.
Supreme Court justice Antonin Scalia echoed the administration's view when he said in a BBC Radio interview on Tuesday 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 last week: "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."
But Manfred Nowak, the United Nations special rapporteur on torture, said last week that the administration's use of waterboarding was "unjustifiable" and "absolutely unacceptable under international human rights law".
As Mukasey and other officials acknowledged, the legal landscape has changed since 2003.
The US Supreme Court ruled in 2005, for example, that the Geneva protections apply to al-Qaeda prisoners, and subsequent legislation from Congress barred cruel, inhuman and degrading treatment of captives.
The net effect was to require the Bush administration, which had opposed the Supreme Court's position, to adhere to legal standards barring conduct that is less severe than torture as legally defined.
Fratto, in remarks to reporters last week, asserted, however, that waterboarding could be legal if the government believed it was under imminent threat.
But many legal experts say that such a "sliding scale" approach applies only to proscriptions against cruel, inhuman or degrading treatment, which ranks a step below torture in US and international human rights law.
Philip Heymann, who was a deputy attorney general in the Clinton administration and now teaches at Harvard Law School, said "there's a plausible argument that there's a sliding scale, but only if you have arrived at the position that it's not torture. There is no sliding scale for torture."
Unlike less severe abuse, torture is clearly banned by federal statute and international treaty. 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 some pain is inflicted and victims are essentially coercively threatened with imminent death.
The CIA said last week that it had been five years, almost to the day, 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.