Is waterboarding torture? Key question in furor over CIA tapes

Probes by Attorney General Mukasey and others could help determine how far the controversy reaches.

In the Watergate scandal of the 1970s and the Iran-contra scandal of the 1980s, government watchdogs used a conventional set of questions designed to expose attempts to cover up wrongdoing.

In this year's emerging Al Qaeda tapes controversy, lawmakers are asking a more fundamental question: Is waterboarding torture?

It is a question that has followed Attorney General Michael Mukasey from his Senate confirmation hearings in October. And it is a question that continues to dog some Central Intelligence Agency officers who were authorized in 2002 to use harsh interrogation techniques to break Al Qaeda suspects.

On Tuesday, in his first press conference, Mr. Mukasey said he is examining the series of legal memos written by Justice Department lawyers condoning coercive tactics.

He says he intends to assess the legality of the memos. Then he will try to determine whether the methods actually used by the CIA conformed with legal requirements established in the opinions.

Mukasey's findings could play an important role in determining whether the controversy over the destroyed Al Qaeda interrogation tapes explodes into an administration-wide scandal or is ultimately viewed as an intra-agency mistake.

Trying to explain tapes' destruction

There are several investigations now under way in Washington related to the destruction of the interrogation tapes. Most involve preliminary attempts to answer why the tapes were destroyed by CIA officials in November 2005 despite judicial and other orders that they be produced or preserved.

Some analysts suggest the agency was attempting to head off a CIA version of the Army's Abu Ghraib scandal. The goal: eliminate the pictures – the indelible images – before they leak to the press and public.

"It really shows a mind-set and pattern of lawlessness, not only to engage in illegal behavior like torture, but to then destroy the evidence and attempt to cover it up," says Jonathan Hafetz, a lawyer at the Brennan Center for Justice at NYU Law School, who represents several detained Al Qaeda suspects.

CIA Director Michael Hayden has been attempting to head off congressional outrage over news of the destruction of the tapes. He met for 90 minutes behind closed doors with the Senate Intelligence Committee on Tuesday, and he was set to face House Intelligence Committee members on Wednesday.

Officials with the Justice Department and the CIA's Office of the Inspector General are working together in a preliminary inquiry to gather facts about the destruction of the tapes. That effort is being headed by Assistant Attorney General Kenneth Wainstein.

Mukasey told reporters that he's given Mr. Wainstein an open mandate. "He's going to go where the facts lead him," the attorney general said.

The action came as a former CIA covert officer, John Kiriakou, confirmed in a series of media interviews that Al Qaeda associate Abu Zubaydah was subjected to waterboarding as part of his CIA-authorized interrogation in 2002.

Waterboarding involves strapping a suspect to a table or board with his head below his feet, placing a covering over his head, and pouring water over his face. The action initiates drowning and causes the suspect to experience an intense sense of helplessness and the belief he is about to die.

The destroyed CIA tapes documented the interrogation of Mr. Zubaydah and a second man, Abd al-Rahim Al-Nashiri, the suspected mastermind of the USS Cole bombing.

Mr. Kiriakou, who has since retired from the CIA, said Zubaydah refused to talk after his capture. But that changed after about 30 seconds of waterboarding. The former CIA officer said that in 2002, he did not believe the technique amounted to torture. He said it had helped thwart ongoing terror plots and saved lives.

He said he now believes waterboarding is torture. "We're Americans and we're better than this, and we shouldn't be doing this kind of thing," he told ABC's Brian Ross.

Republican Sen. Lindsey Graham of South Carolina raised the waterboarding issue during a Senate Judiciary subcommittee hearing on Tuesday. But he did it with a slight twist.

The witness was Brig. Gen. Thomas Hartmann, chief legal adviser at the Pentagon's Office of Military Commissions.

"General Hartmann, do you believe waterboarding violates the Geneva Convention?" Senator Graham asked.

"Torture is illegal in the United States," the general said, echoing the Bush administration's standard response to questions about interrogation methods.

Graham was not satisfied with the answer. Suppose there is a downed American airman in Iran, the senator asked, and the Iranian government is waterboarding the airman to learn when the next US military operation will occur. What should be the response of the uniformed legal community regarding such activity?

Hartmann: "I'm not equipped to answer that question, senator."

Graham: "You mean you are not equipped to give a legal opinion?"

Hartmann: "I am not prepared to answer that question."

View from a former inspector general

Frederick Hitz has experience grappling with difficult moral and legal issues in an environment of intense secrecy. From 1990 to 1998, he served as inspector general of the CIA.

There are times when intelligence officers must make difficult judgment calls to quickly obtain crucial information, says Mr. Hitz, who now lectures at the University of Virginia Law School. But, he stresses, "Laws weren't meant to deal with that situation."

The former CIA inspector general says: "You deal with it at your own responsibility, and you will attempt to get that information by whatever means. That is the way things are."

He adds, "But you don't legalize it, and you don't in any way try to build a system around it."

Hitz says the Bush administration should drop its endorsement of harsh interrogations and instead abide by the interrogation regulations and safeguards in the US Army Field Manual. A measure to achieve this is pending in Congress.

"You might miss the odd bit of warning that was available if you had used every technique at your disposal," Hitz says. "But at the end of the day you have probably avoided more problems than you would have solved."