The head of the CIA said Thursday it is uncertain whether the use of waterboarding, a form of simulated drowning widely condemned as torture, would be lawful if used today against al Qaeda detainees.
General Michael Hayden, the CIA director, said the legal landscape has changed since the technique was used nearly five years ago in interrogations of three top al Qaeda detainees. "It's not a technique that I've asked for, it's not included in the current program," Hayden told members ofthe House Intelligence Committee.
"And in my own view, and the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered lawful under current statute," he said.
Hayden's comments contradicted the White House which earlier this week defended the practice and said it could be used again in a situation where an attack was believed to be imminent. Attorney General Michael Mukasy, meanwhile, said the Justice Department would not investigate the earlier use of waterboarding as a potential crime.
He said its use by the CIA "cannot possibly be the subject of a criminal, a Justice Department investigation, because that would mean that the same department that authorised the program would now consider prosecuting somebody who followed that advice." Hayden publicly admitted to the CIA's use of waterboarding for the first time on Tuesday in testimony before a Senate committee.
He said that at the time waterboarding was deemed to be lawful. It was used against three al Qaeda detainees at a time when US intelligence believed that further catastrophic terrorist attacks were imminent, he said.
The three were purported September 11 mastermind Khalid Sheik Mohmmed; Abu Zubaydah, an aide to al Qaeda leader Osama bin Laden; and Abd Al-Rahim al-Nashiri, the alleged operational commander of a suicide attack on the USS Cole in Yemen in 2000.
Hayden said Thursday that he decided to go public because "it was our strong belief that the political discussion that was going on was mis-shaped and misinformed." He said he believed that outside contractors were involved in the waterboarding but they were bound by the same rules of force as CIA officers.
"We used waterboarding on three individuals under what were fairly unique historic circumstances," he said. "Number one, the belief across the community that further catastrophic attacks were imminent, number two, an admitted weak understanding of the workings of al Qaeda. Those two situations do not pertain at the current time.
"The third leg of the stool on which we stood at that point in time was the inherent lawfulness of the activity. A landmark Supreme Court decision in the case of Salim Ahmed Hamdan in June 2006 found that the United States had failed to meet Geneva Conventions requirements on the treatment of prisoners in ordering trials for "war on terror" detainees.
The Hamdan ruling prompted the administration to suspend a secret CIA detentions of war on terror suspects in September 2006, and to persuade Congress to pass a law authorising the trials. The Detainee Treatment Act of 2005 used the language of the Geneva Conventions to bar "cruel, inhuman or degrading treatment or punishment" of war on terror detainees.