The Interrgotation Tapes and Torture

As the furor grows concerning the destroyed video tapes of CIA interrogations of two al Qaeda operatives and the possible involvement, despite previous denials, of the White House, the questions ultimately all come back to the legality of interrogation techniques. I'm not so interested in the question of whether the destruction of the tapes was a violation of the law; rather, what is critical is the nature of the interrogations that were caught on those tapes.

The tapes show the 2002 interrogations of Abu Zubaydah and Abd al-Rahim al-Mashiri and it is believed that both men were subject to harsh coercive interrogation techniques, including waterboarding. The tapes are now being sought to determine whether the CIA's techniques amount to torture, as well as to determine the validity of the testimony.

While much of the blame of the use of harsh interrogation techniques is put on the Bush Administration, the real problem lies with Congress. It's true that the Bush Administration used some creative definitions and a bit of subterfuge, publicly stating that the US does not use torture while privately broadening the realm of coercive interrogation to include techniques commonly seen as torture, such as waterboarding.

However, it's also true that Congress, or at least members of Congress, knew what was going on. In 2002, four members of Congress, including now-Speaker of the House Nancy Pelosi, were briefed by the CIA on interrogation techniques, including waterboarding. According to the Washington Post:

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).

Individual lawmakers' recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."

Congressional officials say the groups' ability to challenge the practices was hampered by strict rules of secrecy that prohibited them from being able to take notes or consult legal experts or members of their own staffs. And while various officials have described the briefings as detailed and graphic, it is unclear precisely what members were told about waterboarding and how it is conducted. Several officials familiar with the briefings also recalled that the meetings were marked by an atmosphere of deep concern about the possibility of an imminent terrorist attack.

"In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic," said one U.S. official present during the early briefings. "But there was no objecting, no hand-wringing. The attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.' "

Only after information about the practice began to leak in news accounts in 2005 -- by which time the CIA had already abandoned waterboarding -- did doubts about its legality among individual lawmakers evolve into more widespread dissent. The opposition reached a boiling point this past October, when Democratic lawmakers condemned the practice during Michael B. Mukasey's confirmation hearings for attorney general.

Senator Russ Feingold (D-WI) has protested the administration's claim of congressional support for the interrogation programs, claiming that "it was 'not the case' that lawmakers briefed on the CIA's program 'have approved it or consented to it.'" True. But when Congress passed the Military Commissions Act in October 2005, it chose to include language outlawing "humiliating and degrading" treatment of detainees. Such language was clearly intended to prohibit the use of torture; but Congress did not explicitly define what techniques were included in the broad definition. Thus, the designation of what was legal (coercive interrogation) and what was illegal (torture) was left up to the Bush Administration.

Given that Congress was aware that the CIA was using waterboarding, it could have easily defined "humiliating or degrading" treatment to include waterboarding, or any other controversial technique it wished to prohibit. Just last week, the House voted to limit all US interrogators to the techniques laid out in the Army Field Manual, which does not allow for physical harm of any kind. Bush has promised to veto the bill, and it's not clear that it will pass the Senate anyway, but it's nice to see Congress taking responsibility for its oversight role.

Recent Supreme Court cases have found that the president and the administration is bound by the Geneva Conventions in its handling of detainees in the War on Terror. But even the Geneva Conventions prohibit torture without defining torture. It is the job of Congress to define the legal parameters within which the president can act. If Congress wishes to outlaw the use of waterboarding, it is free to do so. But to not do so and then to blame the president for its use is disingenuous.