Author Archives: Michael Froomkin

Waterboarding is torture. And the Administration wants to ensure that the CIA can keep doing it and its ilk.

White House Fought New Curbs on Interrogations, Officials Say: At the urging of the White House, Congressional leaders scrapped a legislative measure last month that would have imposed new restrictions on the use of extreme interrogation measures by American intelligence officers, Congressional officials say.

The defeat of the proposal affects one of the most obscure arenas of the war on terrorism, involving the Central Intelligence Agency's secret detention and interrogation of top terror leaders like Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and about three dozen other senior members of Al Qaeda and its offshoots.

The Senate had approved the new restrictions, by a 96-to-2 vote, as part of the intelligence reform legislation. They would have explicitly extended to intelligence officers a prohibition against torture or inhumane treatment, and would have required the C.I.A. as well as the Pentagon to report to Congress about the methods they were using.

But in intense closed-door negotiations, Congressional officials said, four senior members from the House and Senate deleted the restrictions from the final bill after the White House expressed opposition.

I suppose this answers the question 'Why isn't Congress doing something about the torture issue?' — the answer is 'Because Bush & Co are working hard to prevent it.'

Is there no one who will filibuster Gonzales — as a fundamental moral issue — by reading all the Pentagon (and FBI) reports on torture into the record? And the photos. And the secret photos and movies, which could be placed on the public record under Congressional privilege . (The latter may be asking too much; although Senators are Constitutionally protected from prosecution from declassifying material when they speak on the floor of the Senate, the consequence would be to lose the clearance that allows them future access to such materials. It might still be worth it.)

Update: Marty Lederman's reaction to this NYT article makes a number of important points including:

• The story confirms the hypothesis that he and I have both been pushing, that one of the engines driving the torture memos was a need to either legitimate, or at least fail to repudiate, ongoing CIA practices
• Once you allow waterboarding by the CIA against foreign persons held secretly abroad, it's not going to be limited to 'top terrorist leaders' but rather, “It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed.”
• This Administration has talked a great deal about how it is committed to treating detainees “humanely,” but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S.
• We'd all be better off if these issues were debated openly rather than having these fundamental moral choices — with, one may add, significant anti-US propaganda implications — made in the dark.