RENEE MONTAGNE, host:
A Justice Department official who two years ago signed secret memos authorizing the waterboarding of suspected terrorists now says his department has not ruled on whether the technique is legal. This comes a week after the CIA confirmed waterboarding had been used on three suspected al-Qaida operatives.
It also coincides with Congress sending President Bush legislation requiring that all interrogations follow the Army field manual, which prohibits physical torment.
NPR's David Welna reports.
DAVID WELNA: In the hot seat before the House Judiciary Committee yesterday sat Steven Bradbury, whom President Bush has nominated to head the Justice Department's Office of Legal Counsel. Senate Democrats have balked at confirming him in that post because of the memos he signed that appear to justify torture. So he's now simply the acting head of this office which rules on the legality of executive branch policies.
New York Democrat Jerrold Nadler, who chaired the hearing, wanted Bradbury's views on waterboarding.
Representative JERROLD NADLER (Democrat, New York): My own view of waterboarding is clear. It is torture, period. And as such, violates several of our laws.
WELNA: Bradbury assured Nadler that in the CIA's secret terrorist interrogation program, waterboarding is a thing of the past.
Mr. STEVEN BRADBURY (Acting Head of Justice Department Office of Legal Counsel): The program, as it is authorized today, does not include waterboarding. And let me be clear, Mr. Chairman, there has been no determination by the Justice Department that the use of waterboarding under any circumstances would be lawful under current law.
WELNA: But later, Bradbury stated for the first time that ever since Congress passed a statute a year and a half ago more broadly defining what constitutes torture, there's been no ruling on waterboarding's legality.
Mr. BRADBURY: The department has not analyzed this procedure under that statute, and as I think you can tell from the change in the language, that statute would present a more difficult question.
WELNA: Nadler noted a federal statute defines torture as, quote, "An act specifically designed to inflict severe physical or mental pain or suffering." Bradbury argued this does not prohibit waterboarding.
Mr. BRADBURY: Our office has advised the CIA when they were proposing to use waterboarding that the use of the procedure, subject to strict limitations and safeguards applicable to the program, was not torture, did not violate the anti-torture statute. And I think that conclusion was reasonable. I agree with that conclusion.
Representative NADLER: Given the definition I just read, how can you possibly justify that?
Mr. BRADBURY: Well, first of all, I'm limited in what I can say about the technique itself, because...
Representative NADLER: We know what the technique is. It's been done for hundreds of years.
Mr. BRADBURY: Well, with respect, Mr. Chairman, your description is not an accurate description of the procedure that's used by the CIA.
WELNA: Documents describing that procedure, Bradbury said, remain classified. Nadler told him he and others on the Judiciary Panel all have high level security clearances.
Representative NADLER: So can you tell us precisely what the legal authority is for withholding those documents from the committee of proper subject matter jurisdiction other than the fact that they might be embarrassing to somebody?
Mr. BRADBURY: Well, Mr. Chairman, let me say, I and the Department of Justice and the attorney general fully recognize and respect the strong oversight interest this committee has in the work of our office. And...
Representative NADLER: We've seen no evidence of that.
Mr. BRADBURY: Well, let me say that we do intend and we strive to respond to and accommodate...
Representative NADLER: Well, let's break through all this. Will you commit to letting us see those memos? And if not, why not?
Mr. BRADBURY: We will - we are giving that serious consideration.
WELNA: And that's as far as Bradbury would go.
David Welna, NPR News.
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