Editorial: Agenda for next president: A new torture policy

Revelations make it clear that Bush still thinks illegal interrogation tactics are OK

In the past, the United States had a straightforward standard in defining torture: Would the United States object to a particular interrogation technique if it was used by an enemy against a captured American?

For example, the United States used that standard to prosecute Japanese soldiers in World War II for using waterboarding, sleep deprivation and freezing temperatures to torture American soldiers.

But that all changed with the Bush administration. In what have become infamous memos worldwide, John Yoo of the Office of Legal Counsel and Jay Bybee of the Department of Justice provided in 2002 a rationale for the use of torture on al-Qaida detainees. Further, these memos argued that the president had the authority to ignore any U.S. law or treaty ratified by the United States regarding interrogations.

Now, six years later, hearings held by the Senate and House have finally provided official confirmation by CIA Director Michael Hayden that the CIA used waterboarding – a sort of controlled drowning – on three al-Qaida detainees in 2002 and 2003. The torture memos were the guiding force. Hayden testified that use of waterboarding and other techniques was "deemed to be lawful" at the time by a Department of Justice opinion through the Office of Legal Counsel.

Hayden didn't mention that the Office of Legal Counsel, beginning in October 2003, considered the torture memos to be problematic. They were withdrawn in June 2004 after the Abu Ghraib scandal broke in April of that year and one of the torture memos was leaked two months later. But the White House never repudiated the torture memos and, as the New York Times reported last October, two more secret torture memos were issued in 2005 saying the CIA could continue to use torture.

Against that backdrop, Hayden testified last week that the CIA hasn't used waterboarding since 2003. He also said the legal landscape has changed "with the Military Commissions Act (2006), the Detainee Treatment Act (2005), the Hamdan decision (2005) and the president's own executive order."

But that's not the view of the White House. A White House spokesman said after Hayden's testimony that CIA interrogators could use waterboarding again, but would need presidential approval. Of course, President Bush appended "presidential signing statements" to the laws mentioned by Hayden, saying that the president can ignore the laws passed by Congress. And, in a Thursday speech, Vice President Dick Cheney stood by the CIA's earlier program and insisted it was in "full compliance with the nation's laws and treaty obligations." The torture memo mind-set obviously remains alive and well in the Bush administration.

The U.S. Army Field Manual on Intelligence Interrogation forbids the use of waterboarding, sleep deprivation, induced hypothermia and other techniques. Gen. Jeff Kimmons, the Senior Intelligence officer in the U.S. Army, has explained why: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."

President Bush clearly continues to think otherwise. It will be up to the next president to remove the torture stain on our national reputation.