FORMER PRESIDENT George W. Bush admits to a few errors in his newly released memoir - but authorizing the waterboarding of captured terrorists is not one of them. "Damn right," he quotes himself as saying about using the technique on Sept. 11 planner Khalid Sheikh Mohammed. Mr. Bush's cockiness on the subject is a measure of how distorted his views - and those of many others in Washington - remain on the subject of torture, and how inadequate the legal barriers against it continue to be.
Until Mr. Bush took office, waterboarding - in which subjects are forced to experience the sensation of drowning - had been considered a crime by the U.S. government for at least 90 years. American soldiers were prosecuted for employing it against insurgents in the Philippines following the Spanish American War; the State Department described it as illegal torture when it was used by foreign governments. Yet Mr. Bush feels free to confess to authorizing its use against three al-Qaeda leaders. That's because senior lawyers in his administration - most of them political appointees - provided him with secret memos declaring waterboarding and other standard torture tactics legal. "I had asked the most senior legal officers in the U.S. government to review the interrogation methods and they had assured me they did not constitute torture," he writes.
In fact one of those extreme opinions was later rescinded by the Justice Department, and the administration took waterboarding off its menu of interrogation methods after 2005. Shortly after taking office, President Obama issued an executive order requiring all government interrogators to abide by Army regulations that forbid it. But as Mr. Bush's words indicate, the matter is not closed. The legal standards governing treatment of foreign prisoners remain hazy - one forbids only actions that would "shock the conscience." Mr. Bush and his handpicked lawyers concluded in secret that that language allowed for the waterboarding of al-Qaeda leaders - and there is little to stop a future president from adopting the same course.
Some have called for Mr. Bush or senior officials from his administration to be prosecuted for their authorization of torture, and they are angry at Mr. Obama for his decision not to pursue such cases. But it is doubtful that a legal case could be made against the former president, even if it were the right political decision. What's really needed is action by the administration and Congress to outlaw known torture techniques such as waterboarding and prolonged sleep deprivation, and establish a clear legal framework for foreign terrorist detainees. In the absence of such statutes, there will be no guarantee that the shameful human rights violations perpetrated by Mr. Bush will not be repeated.