President George W. Bush appeared headed toward another train wreck with Congress as he carried out his threat to veto an intelligence bill that would have banned the Central Intelligence Agency from using waterboarding and other ‘enhanced interrogation techniques’ in questioning terrorism suspects.
The bill, passed by both the House of Representatives and the Senate, would have limited the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would have ended the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.
Congress does not appear to have the votes to override the Bush veto, which he announced in his weekly radio address on Saturday. His support comes principally from Senate Republicans, including the Republican presidential nominee, Senator John McCain.
McCain was one of the principal authors and champions of the Detainee Treatment Act of 2006, which banned harsh interrogation techniques by the U.S. military, but did not cover the CIA. President Bush signed the bill into law, but issued a ‘signing statement’ claiming executive authority to ignore the law if it was necessary for national security purposes.
"Staging a mock execution by inducing the misperception of drowning is a clear violation" of laws and treaties, McCain said at the time.
But McCain sided with the Bush administration on the waterboarding ban by the CIA. He said the measure went too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding.
Human rights activists have been sharply critical of McCain’s vote. Typical is Michael Ratner of the Center for Constitutional Rights, a legal advocacy group that has defended a number of detainees at Guantanamo Naval Base in Cuba, and mobilized pro-bono legal representation for many others.
He told us, “That Senator McCain voted against the legislation ending torture -- which included a ban on water torture -- gives lie to the assertion that he cares about fundamental human rights. He is a craven opportunist and worse -- an aider and abettor of torture.”
The two Democratic presidential contenders, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), have said waterboarding is clearly illegal and should be banned, but neither voted on the Senate measure because they were campaigning elsewhere.
The Senate passed the bill during the same week in which the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.
Bush’s veto is the latest battle in the Administration’s war with Congress on the limitations placed by the U.S. Constitution on the executive branch of government. Under the Constitution, Congress is a co-equal branch, as is the Judiciary. Bush has claimed that the Constitution requires him to protect and defend the American people, and that this responsibility requires greatly expanded powers for the White House.
Another ongoing power battle with Congress involved the President’s authorization of the National Security Agency (NSA), one of 16 U.S. intelligence organizations, to conduct surveillance of telephone and email messages without court approval. In 1978, Congress passed the Foreign Surveillance Act (FISA), which set up a special court and required the Administration to secure warrants from that court based on a showing of probable cause. Without approval from the FISA Court, President Bush launched a “terrorist surveillance” program shortly after the attacks of 9/11, recruiting private telecommunications companies to assist in that effort.
Congressional action on a FISA revision is currently being blocked by a debate about whether these telecom companies should receive “retroactive immunity” from prosecution, though President Bush claims they broke no laws.
Waterboarding has become a proxy for these types of expanded executive branch powers. A Justice Department (DOJ) senior official, Steven G. Bradbury, acting head of the DOJ’s Office of Legal Counsel, recently joined his boss, Attorney General Michael Mukasey, in testifying to congress that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."
Waterboarding, a form of mock drowning, has been prosecuted as torture in the U.S. for more than a century. After World War Two, the U.S. prosecuted Japanese soldiers who used the technique against American prisoners of war.