washingtonpost.com
The White House's Perverse Argument

By Dan Froomkin
Special to washingtonpost.com
Thursday, February 7, 2008 1:12 PM

When you get right down to it, the White House's new argument in favor of waterboarding is that the ends justify the means.

The White House line: Yes, we did it, but only to three chief terrorists, and only when we thought the nation was in imminent danger. We got life-saving information in return. And so we'd do it again in similar circumstances. (See yesterday's column for more.)

Putting aside for a moment the question of whether the ends did in fact justify the means -- and there is considerable evidence that the waterboarding of those three men miserably failed that test as well -- the White House argument is deeply perverse and goes against core American values.

Waterboarding is undeniably cruel. It is undeniably an assault on human dignity. The Eighth Amendment to the Constitution -- the one banning cruel and unusual punishment -- doesn't come with an asterisk indicating: Except when you think it's really, really important.

It's true that on TV, the ticking time bomb scenarios are crystal clear, being tough means using torture, and torture always works. But none of those things are remotely true in the real world. Which is why we have rules that we're supposed to follow, even in emergencies.

And even on the twisted terms the White House is advocating, the evidence suggests that the ends in this case did not justify the means. The White House asks us to believe that in this case it was worth it. But despite all the generalized assertions that countless lives have been saved by the CIA's interrogation program, Bush and his aides -- as I wrote in my Dec. 11 column-- have yet to offer a concrete case where intelligence produced by torture saved a single life. To the contrary, as I wrote in October, Bush has repeatedly cited examples of thwarted attacks that turned out to be wildly exaggerated.

Finally, the White House argues that waterboarding is legal because the Justice Department said so. But waterboarding is flatly, objectively illegal -- according to both U.S. and international law. Try to find one independent expert to tell you otherwise. And, despite their heated assertions, no one in the White House or at the Justice Department has yet to provide a single vaguely reasonable argument to support their position. All those legal briefs are conveniently considered top secret.

Pariah Nation

Bradley S. Klapper writes for the Associated Press: "The United Nations' torture investigator criticized the White House Wednesday for defending the use of waterboarding and urged the U.S. to give up its defense of 'unjustifiable' interrogation methods.

"The comments from Manfred Nowak, the U.N.'s special rapporteur on torture, came a day after the Bush administration acknowledged publicly for the first time that waterboarding was used by U.S. government questioners on three terror suspects. . . .

"'This is absolutely unacceptable under international human rights law,' Nowak said. 'Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable.'"

Amnesty International yesterday called for a "full, independent and prompt criminal investigation, following the first public admission by CIA Director, General Michael Hayden, that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody.

"'Waterboarding -- where detainees are subjected to simulated drowning -- is torture. Torture is a crime under international law,' said Rob Freer, Amnesty International's researcher on the United States. 'Yet, no one has been held accountable for the authorization and use of waterboarding by U.S. personnel.' . . .

"'Any U.S. President does not have the authority to order or approve the torture of an individual. No one does. Any criminal investigation must have the power to go right to the top.' . . .

"'It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations,' said Freer."

The Coverage

Greg Miller writes on the front page of the Los Angeles Times this morning: "The White House said Wednesday that the widely condemned interrogation technique known as waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.

"The surprise assertion from the Bush administration reopened a debate that many in Washington had considered closed. Two laws passed by Congress in recent years -- as well as a Supreme Court ruling on the treatment of detainees -- were widely interpreted to have banned the CIA's use of the extreme interrogation method.

"But in remarks that were greeted with disbelief by some members of Congress and human rights groups, White House spokesman Tony Fratto said that waterboarding was a legal technique that could be employed again 'under certain circumstances.' . . .

"For years, White House officials denied that the U.S. had engaged in torture but always stopped short of confirming whether waterboarding had been used. The administration's latest stance -- described by Fratto during the daily White House briefing -- was denounced Wednesday by key lawmakers. 'This is a black mark on the United States,' said Sen. Dianne Feinstein (D-Calif.), a member of the Senate Intelligence Committee. 'The White House is trying to give themselves as much of an open field here as possible. It says to others that we are prepared to use the same kinds of tactics used by the most repressive regimes and the most heinous regimes.'"

The issue "has been divisive politically for Republicans. Sen. John McCain of Arizona, now the front-runner for the GOP presidential nomination, has led efforts to outlaw waterboarding and other harsh interrogation methods previously employed by the CIA.

"In a recent GOP presidential debate, McCain said it was inconceivable that 'anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law.'"

Miller writes that Tom Malinowski, the Washington advocacy director of Human Rights Watch, thinks that "the administration may be seeking to define a loophole in international laws banning prisoner treatment that would 'shock the conscience.' That standard, the administration might argue, could shift dramatically if there was reason to fear the country was in danger of imminent attack.

"But even so, McCain and [fellow Republican Sen. Lindsey] Graham recently signed a letter to [Attorney General Michael] Mukasey saying that it was 'beyond dispute that waterboarding "shocks the conscience." ' And other experts said it would be more difficult to make such interpretations of the Geneva Conventions and other standards.

Miller also quotes a senior U.S. intelligence official, who argues that waterboarding should not be considered torture because the U.S. military has subjected its own personnel to the method to prepare them for the possibility of being captured.

"'Tens of thousands of American Air Force and naval airmen were waterboarded as part of their survival training,' said the official, who spoke on condition of anonymity. 'We don't maim as part of our training. We don't mutilate. We don't sodomize. Those are things that are always bad. . . . Intellectually, there has got to be a difference between [waterboarding] and the others; otherwise we wouldn't have done it in training.'"

Michael Isikoff and Mark Hosenball, writing in Newsweek, explain the odd timing of the White House announcement. They describe a debate within the administration about how much to disclose.

"In little-noticed public comments in Geneva last November, John Bellinger, the State Department's chief legal adviser, said there was a 'need for greater clarity about what is permitted and what is prohibited' when it came to interrogation techniques. A lack of clear guidelines, he said, 'makes it more difficult for the United States to reaffirm our commitment to international law in the world.'

"But Bellinger's argument that the United States needed to have greater 'clarity' about its interrogation practices ran into a brick wall in the form of Vice President Dick Cheney and his top aide, David Addington, according to a senior administration official. . . .

"The debate over what to say or not say continued until last week, when Deputy Secretary of State John Negroponte casually let drop, in an interview with National Journal, that 'waterboarding had not been used in years.' . . .

"Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to the senior administration official. 'It was an accidental disclosure,' said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip."

Public-relations benefits? I don't see them.

Dan Eggen writes in The Washington Post: "Independent legal experts have called the technique torture and said its use is barred by U.S. laws and treaties under all circumstances. . . .

"Tom Malinowski, Washington advocacy director for Human Rights Watch, said the Bush administration's admissions about waterboarding mark an important milestone. 'It's not an abstract debate anymore,' Malinowski said. 'They've acknowledged that they've waterboarded people, and virtually every legal authority in the United States believes that waterboarding is torture and a crime.'

"Democrats and Republicans have criticized the CIA's use of waterboarding. The current front-runner in the Republican presidential race, Sen. John McCain (Ariz.), and two other Republican senators said in a letter to Mukasey in October that 'we were personally assured by Administration officials' that a 2006 law governing interrogations by the CIA and other agencies 'prohibited waterboarding.'"

Jennifer Loven of the Associated Press relates Fratto's comments in the off-camera gaggle yesterday morning: "'There's been a lot written out there -- newspaper, magazine articles, some of it misinformation,' Fratto said. 'And so the consensus was that on this one particular technique that these officials would have the opportunity to address them -- in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them.'"

Opinion Watch

Although the second part of what Fratto promised -- "what the benefits were" -- has never been specified, the ends-justify-the-means argument has found some disciples.

The Wall Street Journa l editorial board wrote yesterday: "Abd al-Rahim al-Nashiri planned the October 2000 bombing of the USS Cole. Abu Zubaydah was the mastermind of the foiled millennium terrorist attacks, which had Los Angeles airport as one of its targets. Khalid Sheikh Mohammed directed the September 11 attacks, and has claimed to have personally beheaded Wall Street Journal reporter Danny Pearl.

"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.

"The court documents, filed in the case of Zacarias Moussaoui, appear to contradict a statement last December by Gen. Michael V. Hayden, the C.I.A. director, that when the tapes were destroyed in November 2005 they had no relevance to any court proceeding, including Mr. Moussaoui's criminal trial.

"It was already known that the judge in the case, Leonie M. Brinkema, had not been told about the existence or destruction of the videos. But the newly disclosed court documents, which had been classified as secret, showed the judge had still been actively seeking information about Mr. Zubaydah's interrogation as late as Nov. 29, 2005."

The Importance of Opening the Record

Over at NiemanWatchdog.org, where I am deputy editor, I've just published a provocative and insightful essay by Steve Aftergood, director of the Project on Government Secrecy, on the importance of getting the presidential candidates to say whether they'll commit to opening up the Bush administration's record.

Aftergood's point is that, by now, no one expects the Bush administration to make itself accountable for its controversial and possibly illegal practices in a number of areas. But the next president will have a unique opportunity to reveal what has been kept hidden for the last seven years -- and, by informing Americans of exactly what has been done in their name, letting the healing begin.

Aftergood's essay also answers a lot of the questions I've been getting from readers lately about what Bush can and can't keep secret after he leaves office.

Aftergood writes: "In 2005, then-Deputy Attorney General James Comey told colleagues at the Justice Department that they would be 'ashamed' when a legal memorandum on forceful interrogation of prisoners eventually became public. In fact, however, disclosure of such secret Bush Administration documents may be the only way to begin to overcome the palpable shame that is already felt by many Americans at the thought that their government has engaged in abusive interrogations, secret renditions or unchecked surveillance.

"The next President will have the authority to declassify and disclose any and all records that reflect the activities of executive branch agencies. Although internal White House records that document the activities of the outgoing President and his personal advisers will be exempt from disclosure for a dozen years or so, every Bush Administration decision that was actually translated into policy will have left a documentary trail in one or more of the agencies, and all such records could be disclosed at the discretion of the next President."

Nominee Watch

Holly Rosenkrantz writes for Bloomberg: "President George W. Bush said the Senate must vote on his backlog of more than 200 nominees promptly and stop treating them like 'political pawns.'

"'The confirmation process has turned into a never-ending political game where everyone loses,' Bush said in a statement at the White House in Washington. 'It is clear that the process is not working.'"

Paul Kiel writes for TPM Muckraker that at the heart of this controversy lies Steven Bradbury, who has been the acting head of the Office of Legal Counsel for more than three years.

"Senate Majority Leader Harry Reid (D-NV) and [Dick] Durbin, the Senate whip, revealed that, in negotiations with the White House late last year before the Christmas holiday, the President refused to strike a deal on nominees unless Reid allowed him to recess appoint Bradbury. Reid said he'd offered to confirm 84 of the pending nominees, but the White House said no dice. . . .

Jim Oliphant blogs for Tribune Newspapers: "Who is Steven Bradbury?

"Bradbury is the acting head of the Office of Legal Counsel at the Justice Department. The critically important office provides legal advice to the White House and it was this office that, at various times during the Bush administration, green-lighted controversial anti-terror policies involving extreme interrogation methods and the warrantless wiretapping program.

"Bradbury was nominated in 2005. He's been doing the job in an acting basis ever since because the Democratic-led Senate has made it crystal-clear they won't vote to approve him. Durbin said that Bradbury signed off on legal opinions approving abusive interrogation practices such as waterboarding and complained that the Justice Department won't hand over those memos.

"The Senate was so fearful that Bush would use a recess appointment to make Bradbury's position permanent that it stayed in session over the Christmas break, having Sen. Jim Webb come in daily to bang the gavel. . . .

"'When the president is willing to vote so many of his own people -- including four Assistant Secretaries of Defense and the Fed -- off the island for one nominee, you know that person must be special. And special he is,' Reid said. 'Mr. Bradbury is the lawyer who loves to give the president the answer he wants regardless of the law, regardless of its impact on our nation and regardless of what it does to our standing in the world.'"

In a letter to Mukasey this week, Durbin described his concerns about Bradbury -- and about whether his continued service as the head of the Office of Legal Counsel violates the law.

Iraq Watch

Charlie Savage writes in the Boston Globe: "The Bush administration is backing off its unprecedented plans to commit the US military to defending Iraq's security for years to come without submitting the agreement to a vote in Congress, Secretary of Defense Robert Gates told the Senate yesterday.

"The plan, called a 'status of forces' agreement, 'will not contain a commitment to defend Iraq, and neither will any strategic framework agreement,' Gates said during testimony before the Senate Armed Services Committee.

"Last November, President Bush and Iraqi Prime Minister Nouri Al Maliki issued a joint declaration announcing their intention to negotiate a long-term compact that would include the United States providing 'security assurances and commitments' to Iraq to deter any foreign invasion or internal terrorism by 'outlaw groups.'

"The proposal sparked controversy because a Bush aide told reporters the White House did not intend to designate the pact as a 'treaty' that would require Senate ratification. . . .

"Still, some controversy remains in the negotiations over the Iraq agreement, which will provide a legal framework for the continued presence of US troops in Iraq after a UN Security Council mandate expires at the end of 2008.

"Critics worry that Bush might agree to provisions, such as permanent US military bases, that could make it harder for his successor to withdraw from Iraq. While the next president could abandon any agreement, doing so would create diplomatic problems by creating the perception that the United States does not always live up to its international commitments, specialists say.

"Bush administration officials have said they don't want permanent military bases in Iraq. But their assurances were called into question last week after Bush issued a signing statement on a defense bill that created a law banning the use of taxpayer funds to establish permanent bases in Iraq."

Karen DeYoung, writing in The Washington Post, provides a marvelous example of the White House standing truth on its head: "Asked to reconcile an apparent contradiction between Gates's testimony and the November Bush-Maliki 'statement of principles,' National Security Council spokesman Gordon Johndroe said members of the administration were 'carefully choosing our words because so many have tried to be misleading as to what's really going to be negotiated.'"

Campaign Watch

Ben Feller writes for the Associated Press: "President Bush, unpopular nationally but still a fundraising force, is ready to put the power of the White House behind the Republican nominee for president. Exactly what his role will be is a trickier matter."

Bush on Prayer

Explaining his presence at the National Prayer Breakfast this morning: "The people in this room come from many different walks of faith. Yet we share one clear conviction: We believe that the Almighty hears our prayers -- and answers those who seek Him. That's what we believe; otherwise, why come?"

Cheney's Dog Watch

Local TV station NBC4 reports: "A motorcade caused its expected commotion in northwest D.C. Wednesday afternoon, speeding down a street and stopping traffic, but it wasn't for a politician or a dignitary. It was for the vice president's dog.

"At about 4 p.m., the motorcade -- complete with Secret Service, motorcycles and two limousines -- was escorting Dick Cheney and one of his two dogs -- the 10-year-old yellow Lab, Dave -- to Friendship Hospital for Animals, News4's Jackie Bensen reported."

Presidential Humor

Here's Bush greeting the Stanley Cup champion Anaheim Ducks yesterday: "Welcome to the White House. We're glad you're here. Like, have you noticed a lot of security around here? It's because the Vice President heard there were some Ducks around."

Cartoon Watch

Clay Bennett and Jim Morin on the budget.

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