In congressional testimony yesterday, CIA director Michael Hayden confirmed that his agency used waterboarding on three al Qaeda suspects. In 2006, Hayden banned the use of waterboarding in CIA interrogations. The Pentagon also banned its employees from using it, and the FBI said its investigators do not use coercive tactics in interviewing terror suspects.
But in today’s gaggle, White House said that it may approve the use of waterboarding again “depend[ing] upon circumstances”:
“It will depend upon circumstances,” spokesman Tony Fratto said, adding “the belief that an attack might be imminent, that could be a circumstance that you would definitely want to consider.”
Later, in a press briefing, Fratto tried to distance himself from these remarks, claiming that he only was talking about “the process” of approving waterboarding. “I’m not speculating,” he declared. Watch it:
Fratto said this morning that if used again, waterboarding would “need the president’s approval,” and the White House would notify “appropriate members of Congress.”
Last week, Attorney General Michael Mukasey repeatedly refused to declare the practice illegal. Yesterday, Director of National Intelligence Mike McConnell and CIA Director Michael Hayden “left open the option of reinstating it.”
Despite its hedging, the White House made clear today it very well may commit illegal torture again.
UPDATE: Jack Balkin has more.
QUESTION: Earlier, you suggested that it would not be ruled out for possible use in the future.
FRATTO: Again, I think I’d refer you to the testimony yesterday where the intelligence chiefs didn’t rule anything out.
What I did talk about was the process whereby the administration would consider any enhanced interrogation techniques.
And that process includes the director of the Central Intelligence Agency bringing the proposal to the attorney general, where a review would be conducted to determine if the plan would be legal and effective. At that point, the proposal would go to the president. The president would listen to the determinations of his advisers and make a decision.
If he made a decision to authorize a specific interrogation technique, part of that process also involves going to the House and Senate Intelligence Committees and the chairmen and ranking members of the Judiciary Committees and to inform them that a change in the program has taken place.
QUESTION: But the fact that the process exists suggests that it could be used again? You’re not ruling it out.
FRATTO: I’m not speculating at all on what circumstances in the future would cause the director of the CIA to make a proposal in that way. That’s something for Director Hayden to address.
What we do know is that they’re taking — they take the interrogation program very seriously. They understand that it must be done with safeguards and under the rule of law.
Every interrogation technique used in this program was brought to the Department of Justice, and the Department of Justice made a determination as to its lawfulness. And that allowed the Central Intelligence Agency to move forward with their program.
Any change would follow the process that I just outlined.