Why Congress, Bush disagree on waterboarding of terror suspects

Much of the debate over interrogation techniques in the war on terror is focusing on a tactic called waterboarding. But a bill passed last month outlaws the full range of harsh interrogation methods used by the Central Intelligence Agency to force terror suspects to talk.

Supporters say the law is an effort by Congress to bring moral and legal clarity to a murky corner of America's war on terror. Opponents say the bill would forewarn Al Qaeda and help them defeat tactics that US intelligence officers rely on to keep America safe.

A promised veto by President Bush may be imminent. And it does not appear there are enough votes in Congress to override such a veto. But the debate is almost certain to continue as the issue arises in high-profile legal cases.

The intelligence authorization bill, passed by the Senate 51 to 45 last month, includes a provision requiring the CIA to abide by the same interrogation procedures used by the US military and outlined in the Army Field Manual.

The action outlaws the coercive interrogation tactics secretly approved for use by the CIA against Al Qaeda suspects. Those tactics included waterboarding, which triggers a reflexive terrifying sensation of drowning.

The Army Field Manual also outlaws prolonged isolation with sensory deprivation, forced hypothermia, and sleep deprivation, among other controversial tactics.

President Bush and CIA Director Michael Hayden have defended the CIA's interrogation program. Intelligence officers need flexibility in gathering information from terror suspects that might save innocent lives, officials say. And Al Qaeda operatives should not be given advance knowledge of the techniques they may face in the interrogation room.

But there are also broader concerns about such techniques being deemed illegal by Congress. While waterboarding was used against three high-level Al Qaeda suspects, many of the other controversial techniques were routinely used on a much larger group of detainees, according to government reports.

The quality of that gathered information is an issue lurking in the background of several of the highest profile terror cases in the US legal system. Detainees at the Guantánamo terror prison camp are asking the US Supreme Court for an opportunity to challenge the legality of their detention by having federal judges test the veracity of allegations made against them.

The Bush administration is fighting to prevent any examination of the quality of US intelligence information in a court of law. Such an inquiry might, in turn, lead to broader questions about the legality of US interrogation methods.

Similar questions about the quality of information and legality of interrogation techniques are expected to arise at US military commissions that are set to conduct war-crimes trials later this year at Guantánamo.

Supporters of the Army Field Manual approach say information obtained through more benign methods of questioning yield more reliable information. Gen. David Petraeus, commander of US forces in Iraq, made this point in a letter to the troops last year. "Certainly extreme physical action can make someone 'talk;' however, what the individual says may be of questionable value," he wrote.

Army Field Manual proponents say the document is easily understood by young soldiers on a battlefield. In addition, they say it carries the clear moral authority of the golden rule. Soldiers are told that if they have doubts about the legality of a particular interrogation technique they should consider whether it would be legal if used against them when taken prisoner.

General Hayden says the CIA only used waterboarding against "three hardened terrorists," and that it had been "deemed legal by the Department of Justice when it was used." He says intelligence officers were operating under the belief that additional "catastrophic" attacks were imminent and the US had limited knowledge of Al Qaeda.

Hayden says those interrogations were conducted within a strict legal framework subject to review and oversight.

One form of oversight was the videotaping of some of the interrogations. The Justice Department is now investigating the destruction by the CIA of some of those tapes.

In the meantime, some members of Congress are working to force administration officials to say on the record whether waterboarding and other harsh interrogation methods are illegal.

In testimony before the Senate Armed Services Committee on Feb. 27, Defense Intelligence Agency Director Lt. Gen. Michael Maples was asked if waterboarding was consistent with human rights protections required under Common Article 3 of the Geneva Conventions. "No, sir, I don't," he said.

"Do you believe it is humane," he was asked.

"No, sir. I think it would go beyond that bound," General Maples said.

In his letter to US troops in Iraq, General Petraeus said: "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."

He added, "Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. That would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary."

Hayden, at the CIA, is advocating a different approach. In a written statement last month, he defended the harsh interrogations. The "CIA's terrorist interrogation program, lawful and effective, was born of necessity," he said. "The agency applied its methods of questioning when other techniques did not work and when a captured terrorist had more information that could save innocent lives."

He added that, contrary to allegations of lawlessness, the CIA program had been carefully vetted by administration lawyers. "As befits a Republic of laws, this vital counter-terror initiative rests on a strong legal foundation," he said.

Robert Mueller, director of the Federal Bureau of Investigation, testified in a Senate hearing on Wednesday that his agency does not feel hamstrung by its rejection of the harsh methods used by the CIA.

Rather than coercing responses to questions, FBI agents are required to develop a rapport and relationship with interrogation subjects, he said. "Our policy prohibits the use of coercive techniques," Mueller said.

The FBI director said his agents were ordered not to participate in any US government interrogations involving such techniques in the post-9/11 terror investigation. At the same time, he said, reliable information was obtained through rapport-building techniques.