Ban On Waterboarding Wins Approval

The Senate narrowly passed a ban on waterboarding as part of their intelligence bill, setting up a showdown between Congress and the White House on limitations for interrogation techniques. The bill clearly states approved and disapproved procedures, ending the ambiguity that has created much of the controversy over whether anyone has ever broken the law in interrogating terrorist suspects. And surprisingly, one of the figures at the head of the controversy opposed the bill:

The Senate voted yesterday to ban waterboarding and other harsh interrogation tactics used by the CIA, matching a previous House vote and putting Congress on a collision course with the White House over a pivotal national security issue.
In a 51 to 45 vote, the Senate approved an intelligence bill that limits the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would effectively ban the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks. …
Congress banned any military use of waterboarding and other harsh tactics through the Detainee Treatment Act of 2006, which was co-sponsored by Sen. John McCain (Ariz.), now the front-runner for the GOP presidential nomination.
But McCain sided with the Bush administration yesterday on the waterboarding ban passed by the Senate, saying in a statement that the measure goes too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding, and he urged the administration to declare it illegal.

The problem with McCain’s position is that the executive branch can’t simply declare something illegal. Congress has to pass the law before the executive can enforce it. The DTA 2006 bill left enough room for the argument to be made either way. Also, no one has waterboarded anyone since its adoption — no one has waterboarded anyone since 2003, actually — so no cases have come to test the interpretations in court.
Yesterday, Congress did what was necessary if they wanted to make waterboarding an illegal interrogation process. However, they did more than that in this bill, which is why McCain rightly opposed it, and why Bush will wind up vetoing it. They basically gave terrorists a manual for American interrogation preparation. They went too far; they could have passed a very specific ban on waterboarding without having to publish the CIA’s approved list of techniques.
I’m still unsure about whether waterboarding, as practiced by the CIA, really amounts to torture. I can see arguments on either side, although the opponents tend to exaggerate the actual process, as my interview with two Special Ops members revealed. I’m inclined to think that it is torture, and therefore should be banned.
If the sense of Congress is that it constitutes torture, then they took the appropriate action in making it illegal — but let no one run from the consequences of that decision. Congressional leaders of both parties didn’t think it was a problem when the CIA used it in 2002 and 2003 on the highest-level al-Qaeda terrorist detainees in our custody and it produced vital actionable intel. They have cut off this potential solution for saving lives.
Some in Congress have claimed that a ticking-bomb scenario would absolve any interrogator who chose to use waterboarding even if made illegal. This is absolutely false. If Congress wants to leave waterboarding open as a possibility, then they need to write the exceptions into law so that interrogators do not have to rely on fair-weather politicians to absolve them of anything. With this action, the interrogators have explicitly been told not to use the technique. Any intel failure arising from that — and there may well be none at all — will be the responsibility of the people who took that tool out of the tool box.
UPDATE: The Justice Department has reversed itself this morning and says that the DTA did cover waterboarding and that it is now not legal:

“The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.
“There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said. It is the first time the department has expressed such an opinion publicly.

This will carry some weight; Bradbury was the man who signed off on waterboarding in 2005, before the DTA. It could be enough for the veto to get accepted by Congress without a big fight over an override.