Bush Administration seeks latitude to use torture at will

Washington Post:

The government's defense of the waterboarding episodes, laid out in congressional testimony and administration statements over the past two weeks, relies on a complex legal argument that many scholars and human rights advocates say is at odds with settled law barring conduct that amounts to torture, at any time or for any reason. It also leaves open the possibility that, under the right conditions, the CIA could decide to use the tactic again.

...Controversy quickly followed CIA Director Michael V. Hayden's confirmation last week that three al-Qaeda prisoners were subjected to waterboarding in 2002 and 2003. Hayden, Fratto and other Bush administration officials left open the possibility that President Bush could authorize 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 last week that the administration's 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 has long been condemned by the State Department, and it is explicitly barred by the U.S. 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 R. Gonzales, had concluded that al-Qaeda prisoners were not covered by protections of the Geneva Conventions.

...Most human rights groups and many lawyers who specialize 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. "Virtually the entire rest of the world, including . . . every legislator who has spoken to the question, has concluded that waterboarding is categorically unlawful," former Office of Legal Counsel lawyer Martin S. Lederman said in a blog posting Friday.