Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
President George W. Bush made explicit Saturday what his administration has been coy about for years: The United States (at least until January 20, 2009) will condone water-boarding and other particularly harsh interrogation techniques in the name of fighting terrorism. And if the rest of the world disapproves, well, so be it. When it comes to waging war upon our terror enemies since 9/11, America has often been wrong but rarely in doubt.
that would have explicitly prohibited the Central Intelligence Agency from engaging in the same torture tactics that are currently outlawed for use by the U.S. military and domestic law enforcement agencies.
So the Federal Bureau of Investigation may not waterboard a terror suspect, and our soldiers may not do so, either. But the CIA? "Because the danger remains," the President said, "we need to ensure our intelligence officials have all the tools they need to stop the terrorists."
The practical impact of the President's veto is to ensure that waterboarding - simulated death through the use of water - and other harsh interrogation tactics will remain a part of the anti-terror arsenal. If the military or FBI somehow get their hands on a new terror suspect, and if the masterminds in our intelligence communities determine that the suspect might reveal pertinent information only through torture, then torture it will be. President Bush knows this, of course. And so do the legislators whose will he has thwarted with this move.
The current distinction between which arms of government may or may not torture are rendered irrelevant so long as any single arm may torture. If you allow the CIA to torture, in other words, you guarantee that suspects can be tortured because in the netherworld of anti-terror investigations everything devolves downward into the harshest common denominator. The government will simply transfer a suspect from the "good cops" at the FBI to the "bad cops" at the CIA to achieve its goals.
Just ask Jose Padilla, who initially was captured by domestic law enforcement officials, how deft the government is about transferring suspects from one legal jurisdiction to another. Or ask the men who have been subjected to extraordinary rendition - the process by which they are abducted by secret U.S. agents and taken to countries where torture has a long, rich and dubious history. Torture is like smoking: either you do it or you don't.
The government is great about compartmentalizing things when it wants to play defense - remember how the CIA hid from the FBI (and the Justice Department) evidence which was relevant to the terror trial of Zacarias Moussaoui? Well, the corollary is true, too. When the government wants to play offense it likes to compartmentalize as well, and nothing says offense in the war on terror as much as waterboarding suspects.
So the President's veto is a big deal, worthy of the sort of "White House Legacy" talk it generated on the nation's front pages over the weekend.
Missing from the President's veto announcement, however, was a careful justification for the controversial policy. The starting point in the conversation ought to be the 1947 war crimes trial in which America charged a Japanese soldier with waterboarding a U.S. civilian. Clearly, following the worst conflict in human history, the United States considered waterboarding a crime against humanity and international law. It is a measure of the impact of 9/11 upon our institutions of government that it would turn this precedent on its head.
So does water-boarding achieve the sorts of results that warrant its use? Some intelligence experts say "yes" and point to the interrogation of Khalid Sheik Mohammed, an al Qaeda leader, as proof that waterboarding forces candor out of the bad guys. Other intelligence experts say "no" and point to a long line of lessons learned from other high-profile interrogations - lessons that indicate that suspects will say anything, absolutely anything, to get the torture to stop.
There is no universal consensus - certainly nothing that seems to warrant turning torture into a government-sanctioned policy. Indeed, many smart terror experts believe that even if the government could justify torture in certain cases in theory, government agents generally do such a bad job of torturing in practice that any information that is revealed as a result of the interrogation is unworthy and unreliable. For example, Juliette Kayyem, a respected and thorough terror expert at Harvard University, posits this realistic view.
And the very nature of the policy itself - secret interrogation sessions the tapes of which the CIA proudly destroys - does not lend itself to careful scrutiny by historians and scholars.
So does the President know something about waterboarding and its effectiveness that none of the rest of us has the ability to know? Is the White House and the CIA worthy of trust when it tells us that waterboarding works well enough to justify the diplomatic and marketing disaster it is around the world? You tell me.
All I know is that this administration will long be remembered for stridently endorsing a brutal act previous administrations once outlawed.