DOJ: Waterboarding not legal -- now

Andrew Zajac

A senior Justice Department official edged close to saying that waterboarding is illegal, according to his remarks prepared for delivery this morning to the House Judiciary Committee.

"There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law," said the Download file text of the statement of Steven Bradbury, acting head of DOJ's Office of Legal Counsel.

But DOJ quickly cautioned against reading that sentence as a declaration of illegality -- which would be the first time the Bush Administration took such an absolute position on the wildly controversial interrogation technique:

"As you can see, Steve Bradbury in his written testimony is not declaring whether waterboarding is unlawful or lawful under the current law. He is simply indicating that DOJ has not reviewed whether it would be lawful under current law because it is not part of the current interrogation program," said chief DOJ spokesman Brian Roehrkasse, in an unusual note appended to a copy of Bradbury's testimony.

Bradbury's statement also says that "the set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding."

Taken as a whole, Bradbury seems to be saying that waterboarding is not currently in use and that there currently is no legal sanction for it, which is a bit further than CIA Director Michael Hayden went recently when he said that waterboarding had been used on three detainees in the past but that it currently is of dubious legality.

The operative word in this discussion is "currently." Bradbury says that waterboarding at the moment is off limits -- but could be brought back into use with the personal approval of the CIA director, the Attorney General and the President.

This position may have been crafted to try to placate waterboarding opponents, among them many House Democrats, by emphasizing the absence of a waterboarding option in the present legally-sanctioned interrogation regimen, while reserving the right to employ it in specific cases.