Correction to This Article
This article gives an incorrect middle initial for Supreme Court Justice Antonin G. Scalia.

White House Pushes Waterboarding Rationale

By Dan Eggen
Washington Post Staff Writer
Wednesday, February 13, 2008

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-Qaeda detainees for allegedly organizing the Sept. 11, 2001, attacks, in cases described by the Defense Department on Monday. One of the six detainees, Khalid Sheik Mohammed, 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, defense 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 -- defense attorneys could still allege that the material is the "fruit of a poisonous tree" and unlawful.

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.

The strategy 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 Sept. 11 attacks. Because waterboarding was deemed legal at the time by the Justice Department, Attorney General Michael B. Mukasey told lawmakers, he has no grounds to launch a criminal probe of the practice.

Supreme Court Justice Antonin M. Scalia echoed the administration's view when he said in a BBC Radio interview yesterday 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."

Such detailed commentary on a classified interrogation program marks a departure for the administration, which for years had refused to confirm the use of waterboarding. Officials asserted that American lives would be put at risk if information about such an aggressive interrogation method were disclosed.

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.

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