White House Pushes Waterboarding Rationale

As a result, lawyers who reviewed the tactic at the Justice Department's Office of Legal Counsel looked narrowly at whether the technique constituted torture, which is defined by statute as infliction of "severe" physical or mental pain or suffering on a captive.

A pair of memos by that office concluded that waterboarding was not torture, possibly because its use was monitored and limited by someone with medical training whose role was to limit the severity of the pain. Those memos, one of which is still secret, paved the way for the CIA to use waterboarding.

But as Mukasey and other officials acknowledged, the legal landscape has changed since 2003. The 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.

In Senate testimony last month, for example, Mukasey emphasized that while waterboarding might be prohibited under some circumstances, it might be allowed if it did not "shock the conscience." That phrase was coined by the Supreme Court in a 1952 ruling against police brutality, which provoked criticism because it imposed an inherently subjective due-process standard. But it was implicitly embraced in legislation approved last year.

Mukasey described the matter as "a balancing test of the value of doing something as against the cost of doing it," and refused lawmakers' demands that he render an absolute verdict on its legality. Fratto, in remarks to reporters last week, amplified the point by asserting 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 U.S. and international human rights law. Philip B. Heymann, who was a deputy attorney general in the Clinton administration and now teaches at Harvard Law School, said the Bush administration is "trying to act as if they have wiggle room even if they don't."

"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," Heymann said. "There is no sliding scale for torture."

Unlike less severe abuse, torture is clearly banned by federal statute and international treaty, a fact that Mukasey acknowledged in testimony last week. "The torture statute applies across the board," he said, adding later that the prohibition is a "bright line."

The Military Commissions Act of 2006, which governs the trial that is being sought for Mohammed and the other Sept. 11 defendants, also expressly bars the use of evidence obtained through torture. But the term is undefined in the statute, and it is unclear whether the commission would side with the Bush administration, which defends waterboarding, or the military, which forbids it.

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.

But David B. Rivkin Jr., a Justice Department official in the Reagan era, said officials may be justified in using the tactic to prevent terrorist attacks in a time of imminent danger. "If you do something when you've suffered a horrible attack and you are expecting another attack any day, that is a very different context than something that you do for 20 years consistently," Rivkin said.

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.