Waterboarding: Not So Illegal After All?

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Yesterday I wrote about the minor firestorm that reignited over waterboarding in recent days, thanks to CIA director Michael Hayden’s Tuesday testimony that his agency waterboarded three al Qaeda members in 2002 and 2003. The White House authorized that particular disclosure; I wonder if they authorized this? Speaking to the House Intelligence Committee yesterday, Hayden said the people who performed the torture were not necessarily trained CIA operatives, but instead unspecified outside contractors:

REP. SCHAKOWSKY (D-IL): Are contractors involved in CIA detention interrogation programs?

GEN. HAYDEN: Absolutely.

REP. SCHAKOWSKY: Were contractors involved in the waterboarding of al Qaeda detainees?

GEN. HAYDEN: I’m not sure of the specifics. I’ll give you a tentative answer: I believe so.

This new wrinkle might explain the apparent confusion among the relevant government agencies over whether or not waterboarding is legal. (By today’s tally, White House says yes, Hayden says no, and Mukasey remains noncommittal.) After all, what’s illegal for the government isn’t necessarily illegal for contractors. We already contract out a good deal of the war, so why not add torture to the mix and save ourselves the legal headache? Maybe this was what White House spokesman Tony Fratto meant when he said that we might still use waterboarding “under certain circumstances.” Then again, maybe it’s simply anybody’s guess.

—Casey Miner

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