As you probably heard, the Senate voted 51-45 yesterday to ban any government agency from any using interrogation tactic not authorized by the Army Field Manual (including waterboarding, sleep deprivation, exposure to extreme cold, etc.). Among the 45 no votes, disappointingly, was John McCain, who reiterated his belief that waterboarding is already illegal but maintained that there might be some other techniques appropriate for CIA use but not authorized by the Field Manual:
What we need is not to tie the CIA to the Army Field Manual, but rather
to have a good faith interpretation of the statutes that guide what is
permissible in the CIA program. ... It would be far better, I believe, for the Administration to state
forthrightly what is clear in current law--that anyone who engages in
waterboarding, on behalf of any U.S. government agency, puts himself at
risk of criminal prosecution and civil liability.
Well, of course the White House listens carefully to the requests of its party's presumptive nominee, so this morning Steven Bradbury, Bush's stalled nominee to head the Justice Department's Office of Legal Counsel, comes along and says something that sounds sort of like what McCain was asking for: "There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law." But this isn't good enough: Bradbury doesn't say that waterboarding is illegal under current law, just that the Justice Department hasn't determined it to be legai. It leaves open the possibility that Bush and the Justice Department might determine waterboarding to be legal at a future date--which is not surprising, given how much the Bush administration has invested in keeping that option open.
What's becoming increasingly clear is that, as a political matter, this has become quite a sticky issue for the Republicans. On the one hand, McCain agrees with Democrats that waterboarding is unequivocally illegal under current law. But the Bush administration continues to refuse to accept that conclusion--a point illustrated by Bradbury's statement today. So McCain is left with two unpalatable options: leave open the possibility of future Bush administration waterboarding (which he has chosen to do), or outlaw other enhanced interrogation techniques in addition to waterboarding, which he apparently considers an unwise course of action. Marty Lederman is right that it would be nice if McCain would spell out which techniques he thinks are appropriate for the CIA to use--because his anti-torture credibility is sinking pretty rapidly.
--Josh Patashnik