Torture and the Constitution
DOES THE Constitution permit the use of "waterboarding," or simulated drowning, to extract information from people detained by the government? To most Americans, the very question may sound ludicrous. Waterboarding, after all, has been recognized as a torture technique since the time of Torquemada and the Spanish Inquisition. U.S. soldiers who were caught using it on enemy insurgents in the Philippines, in 1901, or the Vietnam War, in 1968, were prosecuted. When suffocation by water was used by foreign governments, such as the Augusto Pinochet dictatorship in Chile, the State Department didn't hesitate to call it torture.
Yet the Bush administration sees it otherwise. Not only have senior officials denied that CIA interrogation techniques, which are known to include waterboarding, constitute torture, but administration lawyers argue that the practice doesn't necessarily violate the lesser international legal standard of "cruel, inhuman and degrading treatment." In ratifying the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment in 1994, the Senate defined "cruel, inhuman and degrading" as any practice that would violate the Fifth, Eighth or 14th amendments. Secretary of State Condoleezza Rice pledged during her tour of Europe last week that administration policy was to prohibit all U.S. personnel from breaking that standard, presumably including those who staff secret CIA prisons. Since the administration continues to maintain that it is not legally bound by the constitutional test outside the United States, Sen. John McCain (R-Ariz.) is pressing legislation that would make that purported policy a law.
What Ms. Rice's statements concealed is that administration lawyers have concluded that waterboarding and other CIA pressure methods don't necessarily violate the Constitution. Case law, they say, doesn't offer a clear guide to what actions represent a clear breach. The standard, they say, is flexible. In the case of a terrorist who may have information that could save thousands of lives, goes the administration reasoning, extreme measures might be acceptable. That's why, when he was asked about waterboarding and a series of other abusive acts during his confirmation hearing earlier this year, Attorney General Alberto R. Gonzales testified that "some might . . . be permissible in certain circumstances."
Europeans and Americans who interpreted Ms. Rice's statements last week as an assurance that the CIA will no longer use waterboarding, prolonged shackling or induced hypothermia in its secret prisons were misled. Administration officials tell us there has been no decision to abandon those practices. Similarly, those who have hoped that the McCain amendment would end CIA abuses, as we have, must lower their expectations. The creation of a legal standard, while essential, probably will have to be followed by an effort to compel the administration to respect it, through further legislation or court action.
Interpreting the Constitution as permitting waterboarding in secret prisons is, to most experts outside the administration, legally outrageous and politically untenable. It means that the Bush administration accepts, in principle, that the FBI may use waterboarding, painful stress positions, forced nudity and other methods on Americans, in American prisons, "in certain circumstances." That's why the Justice Department has classified its memos on the subject and kept its conclusions secret. That's why President Bush and Vice President Cheney have worked so hard to stop the McCain amendment, which would pave the way for legal challenges to their interpretation. They want to give themselves the authority to commit human rights abuses without having to explain or justify themselves to the public, the world -- or an impartial court.