Today the Senate voted 51-45 to adopt the Conference Committee's intelligence authorization bill. Included in that bill is section 327, a Feinstein Amendment that would require all agencies of the U.S. government, not simply the military -- to limit interrogation techniques to those identified in the Army Field Manual. Section 327 reads as follows:
SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) LIMITATION.—No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.
(b) INSTRUMENTALITY DEFINED.—In this section, the term ‘‘instrumentality’’, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.Only five Republicans voted for the bill--Senators Collins, Hagel, Lugar, Smith and Snowe.

Tomorrow being Thursday. Please don't forget to contact your representative and insist on a vote to override the veto of the the FY 2008 Labor-HHS-Education Appropriations conference report.

Enter your zip code in the Capitol building icon right under Chimpy, click and off you go. Do it for the children.

Today President Bush vetoed an intelligence authorization bill which would have required the CIA to abide by the Army Field Manual. The Army Field Manual outlaws waterboarding and a variety of other coercive techniques that the Administration euphemistically calls "enhanced interrogation techniques." The White House announced previously that it had waterboarded people before and might do so again in the future. Bush's veto is, in effect, an attempt to retain the option to violate the Geneva Conventions, the Federal Anti-Torture statute, and the McCain Amendment. He would only retain this option, however, because his lawyers have made unreasonable interpretations of U.S. law to conclude that the most egregious of these techniques-- including waterboarding-- are lawful, instead of what they actually are: violations of federal law and breaches of Geneva.

Congressman Nadler asks Steve Bradbury two critical questions: (i) How is it possible that the CIA's waterboarding (which Bradbury insists is not as bad as the traditional technique!) is not designed to result in severe physical and/or mental pain or suffering?;

and

(ii) Is there any theory under which the Executive has a legal right to withhold from the Committee OLC's legal opinions on the legality of the enhanced techniques, so that the Committee can oversee DOJ (and, I would add, so that the Committee has some understanding of how our government is interpreting and implementing Congress's own enacted statutes)?

Bradbury, not surprisingly, does not provide any direct answers to either question.

Not surprisingly, Attorney General Mukasey has proven George Orwell right: He refuses to say that waterboarding is unlawful -- sometimes it is; and sometimes . . . perhaps not. It all depends on the facts and circumstances. In a letter he issued last night, Mukasey wrote: "If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding.

Back during his confirmation hearings, I suggested that Michael Mukasey could and should address Senators' concerns about waterboarding by simply stating that it is unlawful torture (and cruel treatment), but that no CIA officials will be prosecuted for having followed contrary legal conclusions issued by OLC. Of course, he did not take that route; instead, he told Senators that he would review the relevant legal memoranda, and then prohibit any conduct that he concluded would be unlawful.

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:

When the destruction of the CIA tapes was publicly revealed, Congresswoman Jane Harman announced that she had advised against it back in February 2003. She offered to produce her letter to the CIA, but it was classified. Today, the CIA has declassified the Harman letter, along with a response from then-CIA General Counsel Scott Mueller. Congresswoman Harman has posted them on her website, touting her role in the interrogation scandal.

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Our President today vetoed a bill that -- once again, for the umpteenth time -- would have rendered even more unlawful some or all of the CIA's "enhanced interrogation techniques." Not much new in the President's veto statement -- the CIA techniques are not "torture"; they are not "cruel treatment" prohibited by Common Article 3; and whadda ya know? -- they're even "humane"!

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

Yesterday, CIA Director Michael Hayden confirmed that the CIA used waterboarding on three subjects.

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it.

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

John McCain started to launch into song on one memorable occasion, but he never gave us the complete lyrics. Here is my humble offering to fill the need I'm sure everyone is feeling.

I was down by the White House the other night,
Heard them all a singin' nearly died of fright.

Bomb Ira-a-an,
Yeah that's the pla-a-an
Cheney's pushing it on Chimpy
He says Chimpy don't be whimpy
Bomb Iran

(bomb bomb, bomb bomb Iran
bomb bomb bomb, bomb bomb Iran)

Bomb Iran,
Yeah that's the plan
Hillary voted to allow it,
She still won't disavow it
Bomb Iran

(bomb bomb, bomb bomb Iran
bomb bomb bomb, bomb bomb Iran)

Bomb Iran,
McCain's the man
People say that he is senile,
But bombing is so penile
Bomb Iran

(bomb bomb, bomb bomb Iran
bomb bomb bomb, bomb bomb Iran)

Bomb Iran,
Bill Fallon's canned.
He was the voice of reason
But to Chimpy that is treason
Bomb Iran

(bomb bomb, bomb bomb Iran
bomb bomb bomb, bomb bomb Iran)

Bomb Iran,
Peace is so bland.
Wolf Blitzer's salivating,
Cause war is good for ratings
Bomb Iran

(bomb bomb, bomb bomb Iran
bomb bomb bomb, bomb bomb Iran)

John Kiriakou confirmed the waterboarding of Abu Zubaydah, and the fact that the White House authorized such crimes, even though such information is "highly classified." Kiriakou said that he "knew the rules" of classification but did not seek CIA approval to make his disclosures. There was fury at the CIA this morning because of this breach.

One of the high-level CIA detainees, Majid Khan, recently met over eight days with his attorneys from the Center for Constitutional Rights, and told them of the "time he spent in CIA custody." In connection with the Mukasey confirmation vote, his attorneys quite understandably wish to let Congress know how our government has treated their client. But as a condition of being able to speak to their client in the first place, the government required them to agree not to reveal what their client told them, because (as they explained in a letter to Senators today) "everything we learned from our client is presumptively classified."

In response to an ACLU FOIA request for the CIA Inspector General report on interrogation techniques, virtually the only thing the Bush Administration is willing to disclose to the public is that we waterboarded certain detainees. Everything else is redacted. Do they not appreciate how chilling and absurd this is -- that the only thing they're willing to acknowledge is that they committed the most serious war crimes?

Quite the legacy.

Alan Dershowitz has an op-ed in today's Wall Street Journal, available through the Harvard Law School web site. I have no doubt that most Balkinization contributors will disagree strongly with the thesis of the piece, which is that there are indeed circumstances where "we" would want the President to authorize torture. He also argues that Mukasey was correct to say that he would need to know specific circumstances before offering a definitive opinion on whether waterboarding, or any other form of interrogation, was unconstitutional because, Dershowitz says, existing case law indicates that the Supreme Court offers quite ambiguous doctrine on the point, that what "shocks the conscience" may involve taking into account the purposes for which any given method is used.

Today's New York Times story about the arraignment of Khalid Shaikh Mohammed concludes with this sentence:
"C.I.A. officials have said that Mr. Mohammed was one of three detainees who were subjected to the simulated-drowning technique known as waterboarding during interrogation, which is described by some as torture."I look forward to Times stories about the earth, "which is described by some as round and as revolving around the sun."

[UPDATE: My colleague David Luban is quite right to note, in addition -- and perhaps more importantly -- that there's nothing "simulated" about the drowning. It's all-too-real drowning. It simply is not permitted to last until death.]

Who could have imagined this history lesson would ever again be necessary? Or that photographs of the Vice President and Attorney General of the United States will one day appear in such histories?

NPR

Evan Wallach

Malcolm Nance

Wikipedia

Talk about polarizing issues. While campaigning in South Carolina yesterday, presidential candidate Fred Thompson said:"I don’t think that it’s the primary responsibility of the federal government to tell you what to eat."Thompson: Don't Let The Government Tell You What To Eat

Senator Biden just asked the Attorney General how it could be that the legality of waterboarding depends on the "circumstances," as Mukasey wrote in his letter. Mukasey's response was revealing: He pointed to the "shocks the conscience" test under the Due Process Clause and the McCain Amendment, under which, Mukasey argued, the "cruelty" of the technique must be weighed against the potential benefits. Biden did not understand how such sliding-scale variables could affect whether the technique is torture or not. Mukasey began to respond that he was not talking about the torture statute.

Said President Bush to General Musharraf yesterday: "You can’t be the president and the head of the military at the same time."

Of course, under our own Constitution, the President must be the head of the military. Indeed, that very Commander-in-Chief Clause has been the source of many of President Bush's own most aggressive claims of unilateral and unchecked power in the conflict with al Qaeda and the war in Iraq. As Bush himself delightfully puts it in his inimitable, colloquial way, "I'm the commander guy."

National Pubic Radio does a lot of those person on the street interviews with prospective primary voters, and while they are not good for my blood pressure, they force me to confront an inconvenient truth. Here are the Republican voters I've heard recently:

• A guy whose number one priority is getting the U.S. out of Iraq. He has decided to vote for John McCain because McCain's a military veteran, and that means he's the guy who knows how to end the war and bring the troops home. One major problem with that theory is that McCain has absolutely no intention of bringing the troops home. On the contrary, he says that he doesn't mind if they stay there for 100 years.
• A woman who says that she's going to vote for Mitt Romney because "he's a committed Christian, and he isn't ashamed of it." Uh, lady -- I've got news for you.
  

The Administration has now publicly acknowledged that it used waterboarding, that it might do so again in the future, and that it has concluded that waterboarding is lawful, at least under certain circumstances (apparently, where it doesn't shock this Administration's conscience). Virtually the entire rest of the world, including, as far as I can tell, every legislator (both Democratic and Republican) who has spoken to the question, has concluded that waterboarding is categorically unlawful because, at the very least, (i) it is torture, prohibited by the torture act and Common Article 3, and the Convention Against Torture; (ii) it is cruel treatment, prohibited by Common Article 3; and (iii) it shocks the conscience, therefore violating Article 16 of the Convention Against Torture as well as the McCain Amendment.

The Department of Justice disagrees. And it has therefore authorized the CIA to engage in conduct that the rest of the world considers unlawful torture and cruel treatment. (In his testimony today, CIA Director Hayden euphemistically explained that the CIA uses such techniques -- which the FBI and DOD representatives testified are unnecessary for the collection of vital intelligence -- in order to get detainees "into a zone of interrogation.")

Think they couldn't top the Ashcroft hospital encounter? The waterboarding and removal of Daniel Levin?

Well, how about a good, ol'-fashioned case of obstruction of justice?

Truly remarkable. When the Times told the CIA that it was going to run this story, Mike Hayden quickly sent out a letter to the CIA, reprinted below. (Hat tip to John Sifton for the letter.) There is a lot to parse in that letter, but unfortunately I can't this evening, other than to briefly annotate the letter itself.

There's a UC Berkeley alum in my household, and so we're frequently inundated with promotional materials from the University.

Last week we received the latest issue of The Promise of Berkeley, a big glossy production designed to tout the accomplishments of members of the University community. The Spring issue includes a piece promoting the close connections between Cal Berkeley and the U.S. government here in D.C. "A number of Berkeley's faculty have held positions in past presidential administrations or worked closely with presidential candidates," it boasts. And so the Promise of Berkeley asked six faculty members -- "three from each side of the aisle" -- to "reflect on their time in Washington, what's at stake in the 2008 presidential election, and what Berkeley means to them."

Steven Bradbury, who is Deputy Assistant Attorney General for OLC (there has not been an official AAG at OLC for some time), is testifying today before the House Intelligence Committee. Here's his written statement. Not much to speak of there, except to note that he will not discuss the CIA techniques that have been deemed legal or unlawful, other than a welcome suggestion that hypothermia ("extremes in temperature") is now proscribed, even under DOJ analysis. Bradbury confirms that DOJ (that is, AG Mukasey) continues to adhere to the legal analysis in the December 2004 OLC opinion, with its indefensible reading of the torture statute. Bradbury also confirms what others in the Administration have been saying recently -- namely, that the "enhanced techniques" are used not merely in proverbial (but in fact mythical) "ticking timebomb" situations, but instead whenever the method in question is deemed "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership."