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White House Admits It Committed War Crimes; May Commit More in Future

By Jack M. Balkin

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal ? not torture as critics argue ? and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

Hayden banned the technique in 2006 for CIA interrogations, the Pentagon has banned its employees from using it, and FBI Director Robert Mueller said his investigators do not use coercive tactics in interviewing terror suspects.

Bush personally authorized Hayden's testimony, White House deputy spokesman Tony Fratto said.

"There's been a lot written out there ? newspaper, magazine articles, some of it misinformation," Fratto said. "And so the consensus was that on this one particular technique that these officials would have the opportunity to address them ? in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them."

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said. Appropriate members of Congress would be notified in such a case, he said. . . .

Fratto said waterboarding's use in the past was also approved by the attorney general, meaning it was legal and not torture.

Officials fear calling waterboarding torture or illegal could expose government employees to criminal or civil charges or even international war crimes charges.

Actually, it violates the law whether or not you call it illegal. Generally speaking, war criminals don't usually admit that they have engaged in war crimes. They usually say they were justified in acting as they did.

But as we've argued on this blog many times, the statutes (and the Geneva Conventions) do not support the White House's strained interpretation. Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both.

President Bush used to say that we don't torture and refused to say what exactly we were doing, on the grounds that it might assist our enemies. Now he is happy to admit it.

This is what the United States has come to under this Administration.

Full post as published by Balkinization on February 06, 2008 (boomark / email).