The CIA has banned Water-boarding, but that also means that they've finally admitted that they've been using it all along. From the Blotter.
The controversial interrogation technique known as water-boarding, in which a suspect has water poured over his mouth and nose to stimulate a drowning reflex, has been banned by CIA director Gen. Michael Hayden, current and former CIA officials tell ABCNews.com.
The officials say Hayden made the decision at the recommendation of his deputy, Steve Kappes, and received approval from the White House to remove water-boarding from the list of approved interrogation techniques first authorized by a presidential finding in 2002.
The officials say the decision was made sometime last year but has never been publicly disclosed.
Finally, the long-standing question of "did they or didn't they" has been answered. They did.
It is believed that water-boarding was used on fewer than five "high-value" terrorist subjects, and had not been used for three to four years.
Its most effective use, say current and former CIA officials, was in breaking Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of ongoing plots against the United States.
A senior CIA official said KSM later admitted it was only because of the water-boarding that he talked.
Ultimately, KSM took responsibility for the 9/ll attacks and virtually all other al Qaeda terror strikes, including the beheading of Wall Street Journal reporter Daniel Pearl.
"KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again," said a former CIA official familiar with KSM's case.
It's been well documented that several months before the Bybee Memos, that under the advise of (as of today Former Attorney General) Alberto Gonzales the President exempted all "Enemy Combatants" from the protection of the Geneva Conventions. This was done, not because terrorists aren't included in Geneva - since according to Geneva Article 5 they are...
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
But because according to Gonzales the President's planned technique could be "misinterpreted" as War Crimes
As reported by Newsweek in 2004.
May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.
The concern about possible future prosecution for war crimes--and that it might even apply to Bush administration officials themselves-- is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.
In that memo Gonzales wrote.
"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.
In February of 2002, following Gonzales' recommendations, the administration declared the Taliban and Al-Qaeda would not be "considered" as covered by Geneva. This semantic dodge paved the way for the Administration to openly violate War Crimes Act (18 USC § 2441) which includes sentences of 5 years to Life and possible execution for Grave Breaches of Geneva.
This Presidential determination was effectively rendered invalid upon the result of Hamdan v Rumsfeld, which found that the Geneva Conventions (and hence the War Crimes Act) did indeed apply to suspected Taliban and Al Qeada combatants.
To protect themselves from possible prosecution the Administration pushed forward the Military Commissions Act which effectively codified the Bybee Definition of Torture into the law. Under the MCA Torture is "Torture" unless the subject is at risk for death or major organ failure - however any techniques which do not leave permanent marks or scars are perfectly "legal."
This dubious legal definition has been an outrage to the international community which has called for the closure and an end to these techniques.
"The state party should cease to detain any person at Guantanamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible," the U.N. Committee Against Torture said in an 11-page report issued in Geneva, Switzerland.
The report concluded that detention of suspects without charges being filed runs counter to established human rights law and that the war on terrorism does not constitute an armed conflict under international law.
The U.S. dismissed the report, calling it "skewed."
The report also suggested that the United States is operating "secret prisons" and called on Washington to close any "it may be running." It said U.S. interrogators should stop using "water boarding" and other questioning techniques that amount to torture.
Administration officials, particularly Gonzales, have long declined to discuss "specific techniques" but it's been clear that they've been leaving plenty of "wiggle room" for techniques such as these within the law.
Gonzales before the Senate: I can not discuss specific techniques used, but we (America) do not torture.
A month and a half ago (and several years too late to prevent Abu Ghraib) President Bush signed an executive order banning "inhumane, degrading and humiliating" interrogation techniques, including a prohibition on sexual abuse and religious denigration.
Water-boarding was not included in this ban, but now we learn that this is because General Hayden had already taken this technique off the table. Although this should be considered welcome news, it is still disturbing to now have direction confirmation that this technique (and several others) had been specifically approved by the President.
While new legislation reportedly gave the CIA the leeway to use water-boarding, current and former CIA officials said Gen. Hayden decided to take it off the list of about six "enhanced interrogation techniques."
While welcoming the move, some critics say the CIA did not go far enough.
"I can say it's a good thing, but the fact remains that the entire program is illegal," John Sifton of Human Rights Watch told ABCNews.com.
And it's not like those other six technique have gone unused as documented by the ACLU via FOIA.
Reported methods of torture and abuse used against detainees include prolonged incommunicado detention; disappearances; beatings; death threats; painful stress positions; sexual humiliation; forced nudity; exposure to extreme heat and cold; denial of food and water; sensory deprivation such as hooding and blindfolding; sleep deprivation; water-boarding; use of dogs to inspire fear; and racial and religious insults. In addition, around one hundred detainees in U.S. custody in Afghanistan and Iraq have died. The government has acknowledged that 27 deaths in U.S. custody were homicide, some caused due to "strangulation," "hypothermia," "asphyxiation," and "blunt force injuries." These techniques constitute cruel, inhuman or degrading treatment and when used in combination or for prolonged periods of time may amount to torture.
This new revelation on Water-boarding connects Bush directly as an co-conspirator in a plot to violate and dodge War Crimes Laws. He may have technically dodged the legal bullet via the MCA so far - but this still means that the numerous deaths-in-custody which have occurred during the Iraq and Afghanistan campaigns, which have been in direct violation of the John McCain Detainee Treatment Act, can now be laid directly on the President's own Oval Office Desk.