A headline in today’s news reads: “Justice Says Waterboarding Not Legal Now.” But as I read the statement of Steven G. Bradbury, the Principal Deputy Assistant Attorney General for the Office of Legal Counsel, the DOJ has not been quite so explicit.
”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.
”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.
So the DOJ is saying, first, that waterboarding is not authorized by current procedures. Great, but the Executive can promulgate new procedures when it wants to, and as we have seen, it can do so secretly. The real question is whether waterboarding violates any criminal statute, such as the statute forbidding torture and conspiracy to torture.
On this point, Bradbury says that the DOJ has not determined that waterboarding is ever legal. But has the DOJ affirmatively determined that waterboarding is always illegal? Bradbury doesn’t say so.
Earth to DOJ–waterboarding is never legal. Leaving aside the international law issues, waterboarding by the government fits squarely within the statutory definition of torture.
TedF