WASHINGTON — The Bush administration allowed CIA interrogators to use tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture, a senior Justice Department said last week.
In testimony before a House subcommittee, Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel, spelled out how the administration regulated the CIA’s use of rough tactics and also offered new details of how simulated drowning was used to compel disclosures by suspected al-Qaida members.
It was not, he said, like the “water torture” used during the Spanish Inquisition and by autocratic governments into the 20th century but was subject to “strict time limits, safeguards, restrictions.” He added, “the only thing in common is, I think, the use of water.”
Bradbury indicated that no water entered the lungs of the three al-Qaida prisoners who were subjected to the practice, lending credence to previous accounts that the nose and mouth of CIA captives were covered in cloth or cellophane. The cellophane could pose a serious asphyxiation risk, torture experts said.
His unusually frank testimony Thursday stunned many civil liberties advocates and outside legal scholars, who have long criticized the Bush administration’s secretive and aggressive interrogation policies.
Martin Lederman, a former Office of Legal Counsel official who teaches law at Georgetown University, called Bradbury’s testimony “chilling.” In an online posting, Lederman said that “to say that this is not severe physical suffering — is not torture — is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding . … is obscene.”
U.S. officials have confirmed that the CIA’s use of waterboarding — involving, they say, three detainees at secret prisons in 2002 and 2003 — required strapping them down and pouring water over their faces to make them fear that they were being drowned. Experts on human rights abuses and torture say the approach was similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria and, as recently as last year, the dictatorship in Burma.
Tom Malinowski, Washington advocacy director for Human Rights Watch, said the administration’s rationale has exposed Americans to risk of mistreatment by other countries. “If Iran or North Korea wanted a blueprint for how to torture an American prisoner without upsetting the Bush administration, they would just need to read what Bradbury said,” Malinowski said.
Bradbury’s testimony marks the latest in a series of recent disclosures about the Bush administration’s use of waterboarding. CIA Director Michael Hayden recently confirmed its use for the first time and said the tactic is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheikh Mohammed, who allegedly masterminded the Sept. 11, 2001, terrorist attacks.
The administration has resisted efforts to explicitly outlaw the tactic, and the president has said he will veto legislation approved by the Senate last week that forbids the CIA from using waterboarding and other coercive tactics not approved under the U.S. Army field manual on interrogations.
Bradbury, like his boss, Attorney General Michael Mukasey, stopped short of saying last week whether waterboarding is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees. But he acknowledged that the Military Commissions Act and other newer laws “would make it much more difficult to conclude that the practice was lawful today.”
That was not the case in 2002, when the CIA’s interrogation program began, Bradbury said. Justice Department lawyers concluded at that time, in secret legal opinions, that waterboarding and other tactics were legal. “I agree with that conclusion,” Bradbury said.
Under questioning from lawmakers of both parties, Bradbury said that pain suffered by a prisoner had to be both severe and long-lasting to be considered torture.
“Something can be quite distressing, uncomfortable, even frightening,” Bradbury said, but “if it doesn’t involve severe physical pain, and it doesn’t last very long, it may not constitute severe physical suffering. That would be the analysis.”
Bradbury wrote two secret memos in 2005 that authorized waterboarding, head-slapping and other harsh tactics by the CIA. As a result of that and other issues, Senate Democrats have repeatedly blocked Bradbury’s nomination to head the legal counsel’s office permanently.
Darius Rejali, a professor at Reed College in Portland, Ore., writes in his book “Torture and Democracy” that the use of cellophane in waterboarding is known as a “dry submarine,” while the use of cloth dates back to the 1600s and is known as the “Dutch method.”
Rejali said the “Dutch method” was also a favorite tactic used by police in the American South in the 1920s.
Bradbury said that during the Spanish Inquisition, captors forced large amounts of water into the lungs and stomachs of prisoners, often while stomping or standing on their chests. Some victims coughed up blood or died, he said.
Bradbury also referred to cases of waterboarding involving Japanese soldiers prosecuted after World War II; one well-known incident involved a type of waterboarding in which a U.S. soldier was forced to ingest large amounts of water and was also beaten and stomped.
“The historical examples that have been referenced in public debate have all involved a course of conduct that everyone would agree constituted egregious instances of torture,” Bradbury said.
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