- The Washington Times - Friday, February 15, 2008

The president’s top lawyer at the Justice Department yesterday said that the interrogation technique known as “waterboarding” has not been considered a legal method since 2005, but he did not call it illegal or rule out its future use.

Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, said there is little or no similarity between waterboarding as it has been used historically and the way in which it was conducted by U.S. intelligence agents after the September 11, 2001, terrorist attacks.

“There’s been a lot of discussion in the public about historical examples,” Mr. Bradbury told a House Judiciary subcommittee. “Those cases of water torture have involved the forced consumption of mass amounts of water…. That is not what we’re talking about.”

Waterboarding consists of immobilizing a person on an inclined board and pouring water over his face to simulate drowning. Water elicits a gag reflex and — with a cloth over his nose and mouth and cellophane wrapped across his face — can make a person think his death is imminent while not causing physical evidence of torture.

The hearing followed the Senate’s Wednesday night approval of an intelligence authorization bill that would outlaw waterboarding, but Mr. Bush has said he will veto it.

“The United States needs the ability to interrogate effectively, within the law, captured al Qaeda terrorists,” said White House press secretary Dana Perino.

She said the intelligence bill “would repeal the entire enhanced interrogation program” passed by Congress in the 2006 Military Commissions Act.

Mr. Bradbury made his comments one week after CIA Director Michael V. Hayden confirmed for the first time publicly that the government had used waterboarding to obtain information from three al Qaeda terrorists prior to the rule changes.

The Military Commissions Act was passed by Congress in response to a U.S. Supreme Court decision, Hamdan v. Rumsfeld, that said the Geneva Conventions applied to the war against terrorist groups such as al Qaeda.

The act helped “ensure that the CIA could continue to operate its program in an effective form,” Mr. Bradbury said.

Mr. Hayden said that three suspected terrorists, including September 11, mastermind Khalid Shaikh Mohammed, were waterboarded between 2002 and 2003, but that the technique has not been used since.

A day later, the White House defended the use of waterboarding, saying that as it was practiced by U.S. intelligence officials it did not amount to torture.

“This program and the techniques used in it were determined lawful, through a process,” said White House spokesman Tony Fratto.

Senate Democrats, however, have demanded a government investigation into the matter to determine whether laws forbidding torture were broken.

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