[JURIST] Acting head of the US Department of Justice (DOJ) Office of Legal Counsel [official website] Steven G. Bradbury testified at a US House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing [subcommittee materials] Thursday that the use of waterboarding [JURIST news archive] has been barred by measures enacted since it the interrogation technique was used on three terror detainees in 2002 and 2003. Bradbury testified [statement, PDF] that there has been no finding that waterboarding would be permitted under current law, saying that:
As noted, the specifics of the program authorized today are not the same as they were in the initial years. The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding. As the Attorney General has made clear, before any additional interrogation method could be authorized for use in the program, three things would have to happen:The testimony comes a day after the US Senate approved [JURIST report] a measure [HR 2082 materials] restricting CIA interrogators to using only those interrogation techniques explicitly authorized by the 2006 Army Field Manual, which specifically prohibits the use of waterboarding and other harsh tactics. The measure was approved by the House [JURIST report] in December, despite a potential veto threat from President Bush, who in July 2007 signed [JURIST report] a controversial executive order [text] that prohibits cruel and inhuman treatment during the interrogation of terror suspects detained by the CIA, but allows "enhanced interrogation techniques" and may exempt the CIA from Common Article 3 of the Geneva Conventions. AP has more.
First, the Director of the CIA, together with the Director of National Intelligence, would have to determine that the new method is necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership; second, the Attorney General would have to conclude that the use of the method, subject to all conditions, limitations, and safeguards proposed for its use, would be lawful under current law (and that includes the requirements of the Detainee Treatment Act, the Military Commissions Act, and Common Article 3); and, three, even if the Attorney General concludes that the method's use is lawful, the President would have to personally authorize its use. In addition, Congress would be appropriately notifiedincluding, per the commitment from the Attorney General, specific notification to the Judiciary Committees if there were a plan to add waterboarding to the program.
Let me be clear, though: There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law.