We Tortured and We'd Do It Again

Greg Miller writes in the Los Angeles Times: "National Intelligence Director J. Michael McConnell distanced himself from recent comments in a magazine article indicating he considered waterboarding a form of torture. The comments were taken out of context, he said.

"McConnell acknowledged the severity of the technique, saying that 'waterboarding, taken to its extreme, could be death.' But there are scenarios in which it might be employed, he said."

Paul Kiel of TPM Muckraker compares McConnell's statements yesterday with what he told the New Yorker's Lawrence Wright.

Yale Law Professor and blogger Jack Balkin interprets yesterday's testimony: "Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it."

Balkin then explains: "The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes. . . .

"Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

"This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. . . .

"It is worth recalling that at his recent hearings Attorney General Mukasey refused to explain the legal basis for why the CIA interrogation techniques (including waterboarding) are not illegal, arguing that the legal explanations themselves are classified, so that no one can know what the laws are."

Be Very Afraid

Yesterday's comments about torture came during a hearing about the administration's latest threat assessment report.

Mark Mazzetti writes in the New York Times that McConnell's central message yesterday was that "Al Qaeda is gaining in strength from its refuge in Pakistan and is steadily improving its ability to recruit, train and position operatives capable of carrying out attacks inside the United States."

McConnell "told lawmakers that Osama bin Laden and his deputy, Ayman al-Zawahri, remained in control of the terrorist group and had promoted a new generation of lieutenants. He said Al Qaeda was also improving what he called 'the last key aspect of its ability to attack the U.S.' -- producing militants, including new Western recruits, capable of blending into American society and attacking domestic targets."

Salon blogger Glenn Greenwald translates McConnell's message this way: "We better forget about checks and balances and oversight and restraints of any kind and everything else and just make sure that the President can spy on our emails and telephone calls with no oversight, otherwise Al Qaeda is going to slaughter us in our Homeland. And we also better make sure that telecommunications corporations don't have consequences when they break the law, otherwise we're doomed, because Al Qaeda is coming."