During a Guardian-sponsored debate about international law on October 24, John Bellinger, the legal adviser to Secretary of State Condoleezza Rice, refused to call waterboarding torture — even if it was used “on an American national by a foreign intelligence service.”
Bellinger hedged when international law professor Philipe Sands asked if he could “imagine any circumstances” where use of the interrogation technique would be “justified” against an American citizen. “One would have to apply the facts to the law, the law to the facts,” he said.
“That just strikes me as very curious,” responded Sands. “Well, I’m not willing to include it or exclude it,” retorted Bellinger:
PHILIPPE SANDS: Let me put it in yet another way. Could you imagine any circumstances in which the use of water boarding on an American national by a foreign intelligence service could be justified?
JOHN BELLINGER: One would have to apply the facts to the law, the law to the facts, to determine whether any technique, whatever it happened to be, would cause severe physical pain or suffering.
SANDS: So you’re willing to exclude any American going to the international criminal court under any circumstances, but you’re not able to exclude the possibility of water boarding being used on a United States national by foreign intelligence service? I mean, that just strikes me as very curious.
BELLINGER: Well, I’m not willing to include it or exclude it.
Bellinger did concede, however, that the Bush administration’s evasiveness on whether waterboarding is torture “makes it very difficult to explain to the world and to provide the important assurance” that America’s post-9/11 policies are within the confines of international law. Listen to it:
Bellinger’s inability to condemn waterboarding as torture, even if practiced on American citizens, is extremely disappointing considering his reputation as one of the voices in the administration that would routinely argue against the efforts of Vice President Cheney and his lawyer, David Addington, to push the legal boundaries.
But it’s not altogether surprising, given his record of deference to Cheney in public. In October 2006, after Cheney called waterboarding a “no brainer,” Bellinger refused to contradict the Vice President, saying only that “Congress would have to determine whether specific interrogation techniques were permissible under the Geneva conventions.”
UPDATE: Retired judge Evan Wallach notes how the United States military justice system has prosecuted “waterboarding” as a form of torture since the Spanish-American war.