- The Washington Times - Wednesday, March 12, 2008

On Saturday, the president announced his veto of the prohibition against “waterboarding” — and other such coercive interrogation techniques — which were contained in the 2008 Intelligence Authorization Act.

Recall that in recent congressional testimony, the CIA director confirmed the use of “waterboarding” during coercive interrogations of three key terrorist captives, soon after the September 11, 2001, attacks.

While congressional and other vocal critics of the veto focused on the waterboarding technique itself, the “torture issue” is but the latest skirmish between Congress and Mr. Bush over use of national security powers and authority.

Background: As with other significant intelligence agency activities, waterboarding was briefed six years ago to key members of Congress: The majority and minority leaders of both houses and the chairmen and vice chairman/ranking minority member of the Intelligence Committees, called the “Gang of Eight.”

Such briefings are always a little strained, because Congress is put on notice a certain activity is under way yet is sworn to secrecy about it, whether they agree with it or not. At the time of the 2002 briefing, it is reported that members from both parties were more concerned whether the techniques briefed were coercive enough to get vital information from captured terrorists. It is also reported, however, that one member disagreed with the practice.

The Executive Department often uses these “Gang of Eight” briefings tactically — the idea being to tell a few members of Congress about potentially controversial activities so they can”t later say they didn”t know about them. This is done by Democratic and Republican administrations alike and is a fact of life in the struggle between Congress and the president over managing national security affairs.

And so is the “new” congressional interest in waterboarding: Now — six years after the fact and with a change in the political majority, Congress chose to revisit the issues in a public discussion — and to beat up on the CIA and the administration. This being an election year is also clearly in play with the politics of the issue.

Executive-legislative tensions aside for a moment, let’s look at the activity itself: Waterboarding as a technique in coercive interrogations, conducted overseas and against “non-U.S. persons.” Those who oppose it — whether their opposition is principled or purely political, argue that the practice is “illegal” and have intricate legal arguments to support that position.

Likewise, those who sought the authority for it have legal arguments to support it. The point is that it isn’t an easy legal issue as some have suggested. Here are some of the key policy questions that relate to the legality issue:

c Is the activity illegal per se, that is, under all and any conditions and circumstances?

c What are the conditions and circumstances under which the techniques could be used, if not illegal per se?

c Does the president have the constitutional authority — inherent or otherwise — to authorize the activity, even if the techniques might be illegal?

c Are those who authorize and/or carry out the interrogations — and use the techniques authorized — liable for criminal or civil prosecution?

Reflecting these complex questions and implicit in the veto is that the congressional ban interferes with the president’s constitutional powers as commander in chief.

Now for Act II of this drama: What if Congress overrides the veto? While such disputes are always complex, and some have even gone to court, it is doubtful that a president would be bound totally by such a prohibition, in that one could easily imagine a situation in which catastrophic results were assured unless coercive measures were used to extract information — i.e., another situation like that of September 11, 2001. In these circumstances, a president — Democrat or Republican — would most likely be advised to authorize the action necessary to get the information and deal with the consequences later.

What about the information itself — obtained from coercive interrogations? And what about the records of such interrogations, including the transcripts and tapes thereof? Some of this information has apparently been destroyed, causing various allegations of a “cover-up.”

First of all, it’s hard to imagine how there could be a “cover-up” of an approved intelligence activity that was briefed to the leadership of Congress in 2002 and presumably “oversighted” thereafter by the Intelligence Committees. In addition, there is a helpful “bright line” here: Only the president and the executive branch can establish regulations for handling national security information: This includes the procedures that govern its collection, dissemination, retention and destruction.

So the issues raised by destroying the information relate almost entirely to whether the rules were followed — or at least were not broken. Even if they were, there is always a chance there was a technical violation of the law in the process — but probably not with the requisite “criminality” required for a criminal prosecution.

These additional complexities demonstrate the high-risk and political environment in which our intelligence agencies must work to do their jobs. And we should continue to give them the benefit of the doubt in such situations. It’s neither fair nor helpful when our intelligence agencies are caught between the president and Congress in the ongoing struggle to control national security affairs — and this, more than “waterboarding,” is the core issue at stake here.

Daniel Gallington served in senior national security and intelligence policy positions in the Defense and Justice Departments and as general counsel for the Senate Select Intelligence Committee.

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