The White House's Perverse Argument

"All three men were captured by the CIA in 2002 and waterboarded in the course of their interrogations. They are also the only U.S. detainees to have been waterboarded. That fact, publicly confirmed yesterday by CIA Director Michael Hayden, shreds whatever is left to the so-called torture narrative, according to which the Bush Administration has engaged in widespread, needless and systematic torture of detainees.

"Instead, we have sworn public testimony that the waterboarding was conducted against the three individuals best positioned to know about impending terrorist atrocities. The interrogations took place when a second major terrorist attack was widely seen as inevitable. And we know that the waterboarding of Abu Zubaydah helped lead to the capture of KSM, and to the foiling of an active terrorist plot against the United States."

The New York Daily News editorial board writes today: "Hayden revealed under oath that the CIA used waterboarding in interrogating three, just three, top Al Qaeda leaders: 9/11 mastermind Khalid Shaikh Mohammed; Abd al-Rahim al-Nashiri, architect of the Cole bombing, and Abu Zubaydah, who hatched the so-called millennium plot.

"The questioning was urgent. 'There was the belief that additional catastrophic attacks against the homeland were inevitable,' Hayden testified. And the technique worked. Zubaydah gave up information that led to Mohammed's capture.

"The CIA has dropped waterboarding from its approved tactics. But, should the need arise, the agency can seek presidential permission to employ it again. This leeway is imperative."

But here are just a few of the problems with these arguments. I don't know much about al-Nashiri, but according to investigative reporter Ron Suskind in his latest book, Zubaydah was a mentally ill minor functionary and, under torture, a serial fabricator. The most valuable information Zubaydah gave investigators about Mohammed was his nickname, which, as Dan Eggen and Dafna Linzer reported in The Washington Post in September 2006, the CIA had already learned seven months earlier. And as Lawrence Wright wrote in the New Yorker last month: "Among the things that Mohammed confessed to was the murder of Daniel Pearl. And yet few people involved in the investigation of Pearl's death believe that Mohammed had anything to do with the crime; another man, Ahmed Omar Saeed Sheikh, was convicted of killing Pearl."

The Boston Globe editorial board writes: "In 1901 in the United States, the military court-martialed and sentenced to 10 years hard labor a US major who had waterboarded a prisoner in the Philippines during the Spanish-American War. The United States officially outlawed the practice after World War II, when the Germans and Japanese had both used it against Allied troops. The Allies executed eight Japanese officers for waterboarding British prisoners and sentenced another to 15 years hard labor for waterboarding a US civilian, among other crimes.

"The United Nations' Convention Against Torture prohibits any treatment of prisoners causing long-term physical or mental damage, which human-rights advocates believe includes waterboarding. . . .

"The Spanish Inquisition, Nazi Germany, militarist Japan, Pol Pot - this is the roster that Bush wants the United States to join. Congress should act to make sure that the United States does not once again stoop to using tortura del agua (water torture). That's what it was called during the Inquisition."

And despite Fratto's assurance that, because waterboarding's use in the past was approved by the attorney general, it was therefore legal and not torture, Yale Law Professor Jack Balkin blogs: "Actually, it violates the law whether or not you call it illegal. Generally speaking, war criminals don't usually admit that they have engaged in war crimes. They usually say they were justified in acting as they did.

"But as we've argued on this blog many times, the statutes (and the Geneva Conventions) do not support the White House's strained interpretation. Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both."

Torture Tapes Watch

Mark Mazzetti and Scott Shane write in the New York Times: "At the time that the Central Intelligence Agency destroyed videotapes of the interrogations of operatives of Al Qaeda, a federal judge was still seeking information from Bush administration lawyers about the interrogation of one of those operatives, Abu Zubaydah, according to court documents made public on Wednesday.