After resolutely refusing for years to say anything on the subject, top Bush administration officials have made a series of public disclosures about the U.S. government's use of "waterboarding" against a handful of top Al Qaeda suspects.
The comments, most notably by CIA Director Michael Hayden in Senate testimony Tuesday, were far from a complete accounting of the government's use of waterboarding, a practice that most international lawyers and even some administration officials now concede is tantamount to torture. But Hayden's public confirmation that the agency had in fact used waterboarding against three Al Qaeda leaders in 2002 and 2003—and then stopped—was a rare symbolic victory for officials inside the administration who have argued that the international furor over its use was badly hurting the United States' image around the world.
Waterboarding, a practice that dates back to the Spanish Inquisition, involves strapping a subject to an inclined table and forcing water into his lungs, typically by pouring it into his mouth and nose. Even Mike McConnell, the director of National Intelligence, appeared to condemn waterboarding this month when he told The New Yorker magazine: "If I had water draining into my nose, oh God, I just can't imagine how painful! Whether it's torture by anybody else's definition, for me it would be torture." (McConnell this week told a Senate panel his comments were taken "out of context" and that he meant to be talking only about his days as a youngster "being a water safety instructor and teaching people how to swim.")
For months, U.S. officials have internally clashed over what the government should say about the matter. 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 who asked not to be publicly identified talking about internal deliberations. (Bellinger and Cheney's office declined comment). In private debates over the issue, Cheney and Addington insisted that any public comments about waterboarding at all—even a simple statement that the U.S. government no longer uses the technique—would help Al Qaeda operatives better prepare to resist U.S. interrogators, according to the official. It would be more effective for interrogation purposes to preserve "ambiguity" about what their CIA captors might do to them, the vice president's office contended, according to this 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. It wasn't used when I was director of national intelligence, nor even for a few years before that," he said. (Negroponte became the first to hold the newly created DNI post in 2005 and served in that capacity until January 2007.)
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.
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 Illinois Democratic 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.