Torture of detainees? No. 'Coercion'? It depends.
New detainee law gives the White House and the CIA most – but not all – of the authority they wanted for interrogations.
When he signed the new terror legislation into law earlier this week, President Bush said the measure fulfilled his most important requirement – that the Central Intelligence Agency be authorized to continue using aggressive interrogation tactics against Al-Qaeda leaders and operatives.Skip to next paragraph
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"This program is one of the most successful intelligence efforts in American history," the president said on Tuesday. "It has helped prevent attacks on our country. And the bill I sign today will ensure that we can continue using this vital tool to protect the American people for years to come."
Despite Mr. Bush's forceful statement, legal and other experts say the new law does not give the White House – and the CIA – the clear and broad authorization the president had requested.
There is room for aggressive interrogators to maneuver, these analysts say, but no green light for such controversial interrogation methods as simulated drowning or prolonged hypothermia.
"It is a kinder, gentler version of the program," says David Rivkin, a lawyer and former official in the administrations of Presidents Reagan and George H. W. Bush. "The president got a little less than what he originally wanted, but he still got a lot."
What the president won was a congressional endorsement of the concept of using coercive interrogations – provided the techniques are not too extreme.
"This is no longer just George Bush's program," Mr. Rivkin says. "The two political branches have come together and spoken in unison on this."
The Military Commissions Act of 2006 sets rules for war crimes tribunals and establishes procedures for US interrogations of unlawful enemy combatants. In June, the Supreme Court ruled that the US must comply with the basic protections of Common Article 3 of the Geneva Conventions in its treatment of detainees in the war on terror.
The new act does this by barring US personnel from engaging in specific crimes such as torture, murder, and rape. But it also prohibits "cruel or inhuman treatment" causing "serious physical or mental pain or suffering."
It is this "cruel or inhuman" standard that creates potential legal liability for some of the harsh interrogation tactics reportedly used in the past on Al Qaeda suspects.
The CIA stopped using many of those tactics when the Detainee Treatment Act was passed in December 2005. That law included a similar provision against cruel or inhuman treatment.
This was the source of the standoff last month between the White House and three Republican senators – John McCain, John Warner, and Lindsey Graham – over interrogation standards. The Bush administration objected to the more restrictive standard, but the senators held firm.
The end result is that Bush retains some flexibility in the new law to adopt regulations authorizing certain kinds of coercive interrogation tactics – but his options aren't as wide as they might have been, analysts say.
"The law would seem to allow the CIA to use interrogation methods that don't cause serious physical or mental harm," says John Yoo, a former Justice Department official and author of a new book "War By Other Means."
Much of the debate over interrogation methods has focused on the harshest tactics, like simulated drowning, also called waterboarding, says Mr. Yoo, a law professor at the University of California at Berkeley School of Law. But interrogators can choose from a range of less extreme tactics, like the kinds of methods used during military basic training, Yoo says. The key is that tactics must not cause "serious physical or mental harm," he says.
"The law prohibits some of the extreme methods, but it doesn't prohibit all interrogation methods that go beyond questioning," he says.