The Truth Will Out

It so happened that Attorney General Michael Mukasey was scheduled to be grilled by the Senate Judiciary Committee a few days later, and Democrats had made no secret that they planned to hammer him about waterboarding. Mukasey's confirmation as attorney general was nearly derailed last year over his refusal to explicitly say the technique was illegal. Mukasey had not intended to go much further last week. But after Negroponte's comments, his prepared testimony was revised at the last minute. "I sought and I received authorization to disclose publicly … that waterboarding is not among the techniques currently authorized for use," he said.

Then, this week, Hayden went further. Testifying before the Senate Intelligence Committee, he at long last publicly put on the record matters that had been widely reported but never confirmed by the administration. "Let me make it very clear and to state so officially in front of this committee that waterboarding has been used on only three detainees," he said. He then listed them: Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks; Abu Zubaydah, the reputed Al Qaeda logistics chief, and Abd al-Rahim al-Nashiri, the Al Qaeda commander in the Persian Gulf.

"The CIA has not used waterboarding for almost five years," Hayden added. "We used it against three high-value detainees because of the circumstances of the time." Intelligence agencies believed that additional "catastrophic" attacks against the United States were "imminent" and the CIA had only "limited knowledge about Al Qaeda and its workings." Since then, he said, "Those realities have changed." (A former senior intelligence official who was working for the government at the time said intelligence officials were petrified that terrorists had smuggled a nuclear weapon into the United States and were planning to blow up New York City. The scenario was like a real-life episode of "24," the official said. Ultimately, the nuclear threat proved bogus.)

White House spokesman Tony Fratto said today that President Bush had directly authorized Hayden's comments, adding that the decision to allow him to do that "wasn't taken lightly. There was discussion. There was great concern about starting to talk about something that we don't ordinarily do ... I cant tell you it wasn't an easy decision." (In fact, Hayden and other agency officials have never said waterboarding itself led to useful intelligence.) But Hayden also seemed to have his own agenda in making the disclosures—and defending the CIA's use of the practice. The recent revelation that the CIA had destroyed videotapes of the interrogations of Abu Zubaydah and Nashiri have triggered Justice Department and congressional investigations and put the agency's interrogation methods under new scrutiny. Hayden wanted to provide some "context" to the waterboarding controversy and also emphasize that the practice was "lawful" when it was employed by the agency, a senior intelligence official said. "Nothing was done without prior legal scrutiny, inside and outside the CIA," the intelligence official said.

But the administration's new openness is not likely to quiet the waterboarding controversy. No sooner had Hayden made his comments yesterday than IllinoisDemocratic Sen. Dick Durbin, who has been among the most vocal critics of the administration on the issue, fired off a new letter to Mukasey about the matter. Contending that the United States has "considered waterboarding to be a war crime for decades," Durbin, pointing to Hayden's comments, asked whether the attorney general was now prepared to launch a new Justice Department investigation to determine if any laws were violated. Until he gets an answer to that and other questions, Durbin said, he will block the confirmation of Mark Filip—the federal judge nominated to be Mukasey's successor on the bench. Asked about the Durbin letter, a Justice spokesman said the department was "carefully reviewing" it, declining further comment.

Terror Watch appears weekly on Newsweek.com

© 2008