Senate Passes Ban On Waterboarding, Other Techniques

By Dan Eggen

Washington Post Staff Writer
Thursday, February 14, 2008; Page A03

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.

President Bush has vowed to veto the legislation, which the House approved in December, and Congress does not appear to have enough votes to override a veto.

House lawmakers, meanwhile, bickered yesterday over a Senate bill approved Tuesday that would permanently expand the government's ability to eavesdrop on terrorism suspects without warrants and would protect telecommunication firms from lawsuits for helping conduct such wiretaps. A temporary law that does not include the immunity provision is due to expire Saturday.

House Democrats had sought to extend the temporary law for 21 days to allow more time for debate, but the full chamber overwhelmingly rejected that idea by a vote of 229 to 191. Thirty-four Democrats joined Republicans in defeating the measure.

The outcome marked a notable victory for Bush, who had threatened to veto any delay and warned yesterday that "terrorists are planning new attacks on our country . . . that will make Sept. 11 pale by comparison."

House Speaker Nancy Pelosi (D-Calif.) signaled last night that debate over the bill is unlikely to end quickly and that Democrats may let the temporary law expire. Although Bush and his aides have said such a move would undermine current surveillance efforts and pose a national security threat, Democrats note that intelligence-gathering orders under the temporary law are good for a year and that routine surveillance powers would remain.

"The President and House Republicans refused to support the extension and therefore will bear the responsibility should any adverse national consequences result," Pelosi said in a statement.

In the Senate, the move to ban coercive techniques at the CIA follows two weeks of intense public debate over the agency's use of waterboarding, a type of simulated drowning, on three al-Qaeda prisoners in 2002 and 2003. It also comes in the same week that the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.

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.

"Staging a mock execution by inducing the misperception of drowning is a clear violation"

of laws and treaties, McCain said.

The two Democratic presidential contenders, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), have said waterboarding is clearly illegal and should be banned, but neither voted yesterday because they were campaigning elsewhere.

A Justice Department senior official is expected to tell House lawmakers today that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

The prepared remarks by Steven G. Bradbury, acting head of the department's Office of Legal Counsel, for a Judiciary subcommittee hearing was obtained in advance by The Washington Post. It essentially reiterates the view of Mukasey, who testified last week that he had not analyzed the legality of waterboarding because it is no longer used. Neither answers the question of whether waterboarding would be legal now.

Human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture.

"This legislation will ensure that the United States no longer employs interrogation methods it would condemn if used by our enemies against captured Americans,"

said Elisa Massimino, Washington director of Human Rights First.

The Army manual forbids eight harsh techniques, including waterboarding, mock executions, use of beatings and electric shocks, forced nakedness and sexual acts, and causing hypothermia or heat injuries.

Washingtonpost.com staff writer Ben Pershing contributed to this report.

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GENERAL JOSEPH HOAR, USMC (RET.) GENERAL PAUL J. KERN, USA (RET.)
GENERAL CHARLES KRULAK, USMC (RET.) GENERAL DAVID M. MADDOX, USA (RET.)
GENERAL BARRY MCCAFFREY, USA (RET.) GENERAL MERRILL A. MCPEAK, USAF (RET.) ADMIRAL STANSFIELD TURNER, USN (RET.) GENERAL WILLIAM G. T. TUTTLE JR., USA (RET.) GENERAL CHARLES E. WILHELM, USMC (RET.) GENERAL ANTHONY ZINNI (RET.) LIEUTENANT GENERAL ROBERT G. GARD JR., USA (RET.) VICE ADMIRAL LEE F. GUNN, USN (RET.) LIEUTENANT GENERAL HENRY J. HATCH, USA (RET.) LIEUTENANT GENERAL CLAUDIA J. KENNEDY, USA (RET.)
LIEUTENANT GENERAL DONALD L. KERRICK, USA (RET.) VICE ADMIRAL ALBERT H. KONETZNI JR., USN (RET.) LIEUTENANT GENERAL CHARLES OTSTOTT, USA (RET.) LIEUTENANT GENERAL HARRY E. SOYSTER, USA (RET.) MAJOR GENERAL LEO M. CHILDS, USA (RET.) MAJOR GENERAL JAMES P. COLLINS, USA (RET.)
MAJOR GENERAL PAUL EATON, USA (RET.) MAJOR GENERAL EUGENE FOX, USA (RET.) MAJOR GENERAL JOHN L. FUGH, USA (RET.) REAR ADMIRAL DON GUTER, USN (RET.) MAJOR GENERAL FRED E. HAYNES, USMC (RET.) REAR ADMIRAL JOHN D. HUTSON, USN (RET.) MAJOR GENERAL MELVYN MONTANO, ANG (RET.) MAJOR GENERAL ERIC OLSON, USA (RET.) MAJOR GENERAL THOMAS J. ROMIG, USA (RET.) MAJOR GENERAL GERALD T. SAJER, USA (RET.) MAJOR GENERAL ANTONIO ‘TONY’ M. TAGUBA, USA (RET.) BRIGADIER GENERAL DORIAN ANDERSON, USA (RET.)
BRIGADIER GENERAL DAVID M. BRAHMS, USMC (RET.) BRIGADIER GENERAL CLARKE M. BRINTNALL, USA (RET.) BRIGADIER GENERAL JAMES P. CULLEN, USA (RET.) BRIGADIER GENERAL EVELYN P. FOOTE, USA (RET.) BRIGADIER GENERAL GERALD E. GALLOWAY, USA (RET) BRIGADIER GENERAL DAVID R. IRVINE, USA (RET.)
BRIGADIER GENERAL JOHN H. JOHNS, USA (RET.) BRIGADIER GENERAL RICHARD O’MEARA, USA (RET.) BRIGADIER GENERAL MURRAY G. SAGSVEEN, USA (RET.) BRIGADIER GENERAL ANTHONY VERRENGIA, USAF (RET.)
BRIGADIER GENERAL STEPHEN N. XENAKIS, USA (RET.)

February 12, 2008
The Honorable John D. Rockefeller IV, Chairman
The United States Senate
Select Committee on Intelligence
Washington, DC 20510

The Honorable Christopher S. Bond, Vice Chairman
The United States Senate
Select Committee on Intelligence
Washington, DC 20510

Dear Chairman Rockefeller and Vice Chairman Bond:

As retired military leaders of the U.S. Armed Forces, we write to express our strong support for Section 327 of the Conference Report on the Intelligence Authorization Act for Fiscal Year 2008, H.R. 2082. Section 327 would require intelligence agents of the U.S. government to adhere to the standards of prisoner treatment and interrogation contained in the U.S. Army Field Manual on Human Collector Operations (the Army Field Manual).

We believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans. That principle, embedded in the Army Field Manual, has guided generations of American military personnel in combat.

The current situation, in which the military operates under one set of interrogation rules that are public and the CIA operates under a separate, secret set of rules, is unwise and impractical. In order to ensure adherence across the government to the requirements of the Geneva Conventions and to maintain the integrity of the humane treatment standards on which our own troops rely, we believe that all U.S. personnel – military and civilian – should be held to a single standard of humane treatment reflected in the Army Field Manual.

The Field Manual is the product of decades of practical experience and was updated in 2006 to reflect lessons learned from the current conflict. Interrogation methods authorized by the Field Manual have proven effective in eliciting vital intelligence from dangerous enemy prisoners. Some have argued that the Field Manual rules are too simplistic for civilian interrogators. We reject that argument. Interrogation methods authorized in the Field Manual are sophisticated and flexible. And the principles reflected in the Field Manual are values that no U.S. agency should violate.

General David Petraeus underscored this point in an open letter to the troops in May in which he cautioned against the use of interrogation techniques not authorized by the Field Manual:

What sets us apart from our enemies in this fight. . . . is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect…. Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary. Certainly, extreme physical action can make someone “talk;” however, what the individual says may be of questionable value. In fact, our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.

Employing interrogation methods that violate the Field Manual is not only unnecessary, but poses enormous risks. These methods generate information of dubious value, reliance upon which can lead to disastrous consequences. Moreover, revelation of the use of such techniques does immense damage to the reputation and moral authority of the United States essential to our efforts to combat terrorism.

This is a defining issue for America. We urge you to support the adoption of Section 327 of the Conference Report and thereby send a clear message – to U.S. personnel and to the world – that the United States will not engage in or condone the abuse of prisoners and will honor its commitments to uphold the Geneva Conventions.

Sincerely,