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Yesterday, the Senate passed H.R. 2082, the Intelligence Authorization Act For Fiscal Year 2008. The Act included a ban on waterboarding and other harsh interrogation techniques. It passed by a vote of 51 to 45, with 4 not voting. The vote was largely upon partisan lines, with Democrats voting for the ban and Republicans voting against it. Here is a roll call of the Senate vote.
Among our senatorial presidential candidates, John McCain voted against the ban. Barack Obama and Hillary Clinton were 2 of the 4 senators who did not vote. McCain's vote is interesting, because in the past he has come out against waterboarding. McCain could have other reasons for voting against H.R. 2082, since it is also an appropriations act, but at first glance, this sure looks like a position reversal by McCain, which almost certainly will be reported as him caving to the conservative base (a curious move, since he already has the Republican nomination in the bag). The Obama and Clinton non-votes are also interesting, because they didn't take a position on a controversial issue and a close vote. At least McCain cast a vote, even if it does open him up to charges of waffling. Obama and Clinton didn't show any leadership. You can bet "scheduling conflicts" will be the reported reason for their absence. I can't say as I blame Obama too much from a tactical standpoint here. Not being "on the record" has served him fabulously well in his presidential campaign of soaring rhetoric. I assume if he does become president, he will henceforth become "present and accounted for". Leadership is a nice quality for a president.
The White House has long said it would veto this type of legislation, with president Bush saying it “would prevent the president from taking the lawful actions necessary to protect Americans from attack in wartime.” Bush's problem is, waterboarding isn't looking all that legal these days. The Detainee Treatment Act of 2005 prohibits cruel, inhuman, and degrading treatment for all detainees in U.S. custody, including CIA prisoners. It limits interrogation techniques to those contained in the Army Field Manual, which doesn't include waterboarding. The justice department also said it doubts that waterboarding is legal now.
At this time, waterboarding is still technically an option available to the CIA, but it requires the consent of the Attorney General and the president on a case-by-case basis. CIA chief Michael Hayden says waterboarding has not been used since 2003. Hayden also says he prohibited waterboarding as a CIA technique in 2006, doubting it's legality in light of the new laws. Bush's position is weak and getting weaker.
The Democrats outcry against harsh interrogation techniques by the Bush administration has resonated far and wide these days, with tons of partisan rhetoric being bandied about, but back in 2002, the Democrats were singing a very different tune. At that time, so close to the devastation of the 9/11 attacks, the Democrats who were briefed on the interrogation techniques were not only supportive of waterboarding and other harsh techniques, they even wanted more done to extract the needed information about future Al Qaeda attacks from high level Al Qaeda detainees, such as Khalid Shaikh Mohammed (one of the 3 who were ever waterboarded by the CIA). You can read a Washington Post article about it here. Speaker of the House Nancy Pelosi was one of those briefed. From that article comes the following:
Yet long before "waterboarding" entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.
With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).
Individual lawmakers' recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."
How times change, eh ? Or, perhaps I should say, how politics change. Opponents of waterboarding say that the world isn't an episode of 24, with Jack Bauer running out of time to prevent an imminent terrorist attack. They are correct. 99.9% of the time is isn't.
But .1% of the time it IS. And what do we do then, after harsh interrogation techniques are expressly prohibited by law, when the needed information is paramount ? Do we tell someone like Khalid Shakh Mohammed that if he tells us what we need to know, we'll give him a cookie ? It's probably more likely that someone in the CIA would break the law anyway, if the information was important enough, don't you think ? Then the Democrats can prosecute that someone for saving the lives of hundreds or thousands of americans, because he poured water down the next Khalid Shaikh Mohammed's nose. So I'd vote nay on that ban. I would leave it with waterboarding requiring the express approval of the attorney general and the president on a case-by-case basis, that would stop it from being abused, but I wouldn't ban it altogether, whether you want to call it torture or not. Sometimes the needs of the many outweigh the needs of the few, or the one, as Mr. Spock would say.