Two Democrats move to outlaw waterboarding

WASHINGTON — The practice of waterboarding would be outlawed specifically, along with other extreme interrogation techniques, under legislation pushed by two Democratic senators.

The measures would repudiate the Bush administration’s policy on torture. The CIA reportedly has used waterboarding — or simulated drowning — when questioning terrorism suspects. It’s also used exposure to extreme temperatures and other methods that are expressly forbidden by the Army Field Manual. The proposed bills would require that all U.S. personnel — including the CIA — use only interrogation techniques authorized by the Army manual.

Last month, President Bush’s choice for attorney general, Michael Mukasey, refused to say whether waterboarding was torture and therefore illegal. And an executive order that President Bush released in July on what techniques the CIA could use was silent on whether waterboarding and other extreme measures were among them.

Sens. Joseph Biden, D-Del., and Edward Kennedy, D-Mass., have offered separate bills that make the Army manual the standard for all U.S. interrogators. All members of the military by law already must abide by the manual. The proposed law would require civilians to do the same.

However, it’s unlikely that the Senate will debate the matter before the end of the year. The legislative calendar is jammed, sponsors of these measures must round up support and Republicans may be reluctant to tie the CIA’s hands against the Bush administration’s will.

Similar legislation is expected soon in the House of Representatives.

“We need to send a clear message that torture, inhumane and degrading treatment of detainees, is unacceptable and is not permitted by U.S. law. Period,” Biden said in a letter to senators.

Michael V. Hayden, the director of the CIA, argued at a Council on Foreign Relations talk in September that the CIA shouldn't be limited to the Army Field Manual’s requirements on interrogation.

“It's clear that what it is we do as an agency is different from what is contained in the Army Field Manual. I don't know of anyone who has looked at the Army Field Manual who could make the claim that what's contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention,” he said.

U.S. law and international treaties have long banned torture. The Military Commissions Act of 2006 said all U.S. personnel must not treat detainees in cruel, inhuman and degrading ways. But backers of the proposed bills say they’re needed because the Bush administration has interpreted the law in a way that leaves open the possibility that the CIA can use the extreme techniques.

Biden said his bill would end “the administration’s semantic games on what constitutes torture. . . . There is no place for the administration’s bad faith interpretation — of waterboarding and other forms of torture — to gain a toehold.” He also warned that “continuing to equivocate about torture” would weaken the coalitions needed to fight terrorism, fuel terrorist recruitment and place Americans in jeopardy.

Biden’s legislation also would close the “black sites” outside the United States where detainees have been held, grant detainees at Guantanamo the right to challenge their imprisonment in court and require the administration to go to a special court and make the case that any non-American terrorist suspect it wants to send to another country wouldn't be tortured there. Kennedy’s bill is limited to interrogations.

“This involves taking on the administration in a very big way,” said Elisa Massimino, an international rights expert with the advocacy group Human Rights First.

The White House’s July order allowed the CIA to restart its secret detention and interrogation program, which had been put on hold in 2006, Massimino said.

Sen. Lindsey Graham, R-S.C., said the proposed restrictions on CIA interrogations were unnecessary. Graham, a judge advocate general in the Air Force Reserves, said he was briefed on how the CIA interrogates suspected terrorists. “I think the president’s CIA program has found the right balance,” he said “It’s lawful; it’s effective. It’s different from the military’s, but still within bounds.”

Graham said he believed that waterboarding was illegal for any branch of government.