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Mukasey Nomination Intensifies Debate on Waterboarding

November 8, 2007 at 6:30 PM EDT
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RAY SUAREZ: The issue of waterboarding returned to Capitol Hill today, as a House Judiciary Subcommittee heard testimony about the controversial interrogation technique.

REP. TRENT FRANKS (R), Arizona: If there was ever a time for harsh tactics, it should be when we are using them to defend against attacks by bloodthirsty terrorists who are trying to kill and maim thousands of innocent Americans.

REP. JERROLD NADLER (D), New York: If these techniques, beyond the Army Field Manual, are not necessary and ineffective, they’re ineffective, why is the administration — why does anybody want to do this?

RAY SUAREZ: The committee heard from witnesses including Malcolm Nance, a counterterrorism intelligence specialist who has experienced waterboarding and has also performed it on American soldiers undergoing training.

SR. CPO. MALCOLM NANCE (Ret.), Former Naval Instructor: Waterboarding is a terrifying, painful and humiliating tool that leaves no physical scars and which can be repeatedly used as an intimidation tool. Waterboarding has the ability to make the subject answer any question with a truth, a half-truth, or outright lie in order to stop the procedure. Contrary to popular opinion, it is not a simulation of drowning. It is drowning.

REP. JERROLD NADLER: So Colonel Couch’s chair remains empty today.

RAY SUAREZ: Missing from the hearing was anyone who advocated the use of waterboarding. The witness representing the Defense Department, Marine Corps Lieutenant Colonel Stuart Couch, was ordered not to testify. He’s a sitting judge in pending terror cases.

But some committee Republicans maintained that, in a few cases, the technique saved lives.

REP. TRENT FRANKS: Khalid Sheikh Mohammed, I use the example, when the interrogators used severe interrogation, he began to reveal information after being quiet for months that helped authorities — let me just repeat myself — arrest at least six major terrorists.

RAY SUAREZ: It’s been reported that the CIA has used waterboarding in carrying out the Bush administration’s war on terror. Khalid Sheikh Mohammed, the lead planner of the September 11th attacks, was allegedly subjected to it.

Waterboarding dates back to the Spanish Inquisition. The subject of interrogation is laid down at an angle so the head is below the feet, a cloth is applied tightly to the face, and water is poured over their mouth and into the nose, causing the lungs to slowly fill with water. The technique is now banned by international conventions against torture and by the U.S. military, as well.

Waterboarding has grabbed headlines recently after the president’s nominee for attorney general, Michael Mukasey, refused to say whether the technique constitutes torture before the Senate Judiciary Committee.

SEN. SHELDON WHITEHOUSE (D), Rhode Island: So is waterboarding constitutional?

MICHAEL MUKASEY, U.S. Attorney General-Designate: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE: If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t.

RAY SUAREZ: His testimony also sparked a waterboarding re-enactment.

PROTESTOR: It is not an “enhanced interrogation technique.” It is torture.

PROTESTOR: No, no, no, please…

RAY SUAREZ: On Monday, protesters gathered outside the U.S. Department of Justice to demonstrate the technique. They branded it torture that the U.S. government “passively condones.”

For more on all of this, we get two views. Former Senior Chief Petty Officer Malcolm Nance, who you just saw testifying before Congress, was a Navy instructor who trained SEALs to deal with waterboarding and other hostile interrogation techniques. He’s now with a consulting company that does work for the U.S. government.

And Neil Livingstone, CEO of Executive Action, a risk management firm that consults for private businesses and the U.S. government on security and terrorism matters, he’s written extensively on terrorism, intelligence, and national security issues.

A first-hand account

Malcolm Nance
Former Navy instructor
[I]t's controlled drowning. And if done wrong, by an unprofessional team or by an inexperienced team, you can kill that person quite easily.

RAY SUAREZ: And as we mentioned, Malcolm Nance, this is something you've had done to you and done to others in the course of training. Explain the sensation. What is actually happening to someone who's being waterboarded?

MALCOLM NANCE: Well, as we said, as you saw in that clip that we saw a little earlier, one of the problems that we have in this discussion is that, for a long time, people have been using the phrase "simulated drowning." And there's a long history of waterboarding. It used to be called "the drowning torture."

The sensation is quite obvious, that you are having large quantities of water poured into your sinus cavity, and then into your mouth, and it's forced down your throat, and then through into the trachea, and then into your lungs.

And the water doesn't generally stop until, of course, the time that the interrogator wants to ask you a question. And at that point, they'll determine whether you're compliant or not. And if you're not compliant, they will keep processing you until you are compliant, which means that you are answering questions.

RAY SUAREZ: So your quarrel with calling it "simulated drowning" is that it is drowning, but it just isn't used to kill?

MALCOLM NANCE: Well, it's controlled drowning. And if done wrong, by an unprofessional team or by an inexperienced team, you can kill that person quite easily.

RAY SUAREZ: Neil Livingstone, do you agree with that definition, so that we're all talking about the same thing here?

NEIL LIVINGSTONE, Terrorism Consultant: Yes, I mean, it's an extreme form of duress that you can subject someone to.

RAY SUAREZ: Is it torture?

NEIL LIVINGSTONE: You know, this is where I have a couple of problems, and I think Mukasey has a problem, too. If we start trying to define too precisely what torture is -- and we shouldn't be doing a lot of things that we're doing now, let me preface that -- we have sent out people to carry out extreme forms of duress in the war on terrorism.

If we suddenly say, "This is now torture," we suddenly are going to say, "Perhaps those people did something illegal," who were serving their country well, and go out and put them on trial today. I don't think that's productive.

I think the other issue is we have other forms of duress that some people disagree with and they define as torture and others don't, the deprivation techniques, things of that nature, and that gets a very slippery slope when we're trying to do too many things.

I think the president ought to have a full toolkit and he or she do whatever they need to do if we have a ticking time clock and a really serious situation. And I think our problem in the past has been that no one has taken responsibility for this.

RAY SUAREZ: Is that sufficient reason on its own not to define torture, that it may put some people who have done some things into legal jeopardy?

NEIL LIVINGSTONE: I think we ought to address that issue before we start defining this, because we have been doing some things, and I think that was what was on the mind of the attorney general-designate when he didn't answer that question.

I think the other thing is we had the same debate, if you will -- and I think you and I had it many years ago -- in terms of what was then called assassination. It ultimately became selective targeting, and we called it something else, and it became we could do it for command-and-control reasons and so on.

If we start splitting hairs and we try to make everything fit a neat legal definition, I think we run into problems, and we may put ourselves at risk when we really have a serious situation. Again, the issue is going to be, who do we allow to do this, under what basis, or to make certain decisions in this regard?

I think the president should do it directly, and then maybe authorize the secretary of defense, maybe the director of CIA alone, and they have to take responsibility. If they think the country is in jeopardy and they need to do something extraordinary, they're going to have to stand up and be accountable for it.

Ticking time-bomb scenario

Neil Livingstone
Terrorism consultant
This is something that we're talking about that you keep in your toolkit, you allow the president of the United States to use it if necessary.

RAY SUAREZ: Do you have any of the same difficulties that Neil Livingstone has in calling this torture?

MALCOLM NANCE: Well, I don't have the same difficulty. I believe that torture is torture. And when you get right down to the technique, we're splitting hairs over whether waterboarding is torture when, in fact, it has been outlawed.

War crimes trials have been carried out during World War II for people who actually conducted waterboarding. It is illegal by definition of the U.S. code and under the international statutes that we carry out military operations, as well.

However, if we're going to focus on the question of waterboarding, I personally don't feel that's the big issue of the day. The big issue of the day is the fact, the question, are we, as Americans, ready to create a gray area that is permanent and within policy, which will allow Americans to carry out torture under the euphemism of "enhanced interrogation techniques"? And are we ready to actually write that into the moral fiber of this country?

RAY SUAREZ: Well, the Geneva Conventions isn't ambivalent about this.

MALCOLM NANCE: No.

RAY SUAREZ: It specifically forbids using the exceptional circumstances argument as a justification for torture or, as has been done in the field with various techniques, using the justification of orders from a superior officer or a government for doing it.

NEIL LIVINGSTONE: The problem is -- and, you know, when you have international law, which was my specialty in graduate school -- you try to make it fit real world situations.

The Israelis go through this all the time. And they have the standard issue that they debate endlessly is, "We have a school bus. It's got 40 kids in it. We don't know what school bus, and there's a bomb on board, and we have an hour to find that bomb, and we have a suspect. Now, which is the greater moral issue, allowing 40 children to die or using, shall we say, strong techniques to try to learn where that bomb is from a subject that you have in custody?"

Again, we're all repulsed by what we saw at Abu Ghraib, for example, where young sadists who were not properly supervised carried out abominable kinds of things on prisoners there. This is something that we're talking about that you keep in your toolkit, you allow the president of the United States to use it if necessary. And in this new world, fighting this new enemy, it may be necessary, as the congressman said on your lead-in piece.

Leaving a loophole

Malcolm Nance
Former Navy instructor
We should clearly differentiate between the question of effectiveness and the question of extracting reliable intelligence information which is actionable. Those are two entirely different things.

RAY SUAREZ: Does it work, Malcolm Nance?

MALCOLM NANCE: No, I don't think it works at all. The problem with using procedures, if we're going to talk about waterboarding as opposed to many other variations of torture, the problem with using these tools is that you are applying duress and coercion to a subject, and that subject is going to want to make that stop, physiologically and mentally.

And as they are trying to make it stop, they will come up with whatever you are asking. Maybe they'll agree with you or they will actually try to create some half-truth or a lie, in order to get you to stop the procedure. And waterboardings are relatively effective.

We should clearly differentiate between the question of effectiveness and the question of extracting reliable intelligence information which is actionable. Those are two entirely different things. I can make anyone say anything I want, given a proper team and a proper amount of time on a waterboard, approximately a minute or two minutes.

RAY SUAREZ: Now, what about Neil Livingstone's point that, in certain circumstances, the ticking time bomb scenario, this may be justified, that when you say "never," rather than "sometimes," you take some important tools away from people who need to extract information?

MALCOLM NANCE: Well, the question is, before September 11th, we had this -- we didn't actually have this written into our policy. We were using the practices and procedures of military intelligence.

And the ticking time bomb scenario has always been used as a straw man for other dictators and totalitarian nations. The Argentineans had this problem when they carried out the dirty war.

Will that scenario ever happen? We can't say that it's going to happen without certainty. But the laws exist. And if we're going to sit here and we're going to exist as a nation and understand that America doesn't torture, if there is an exceptional circumstance, well, perhaps those people are going to have to be absolutely certain that they have the right people, and they may have to violate the law and then suffer the consequences. If they're wrong, I want them to think once, twice, 30 times.

The problem is that some people want us to actually write into legislation a loophole. And once you've written that loophole into a historical precedence, which has existed for almost two centuries in this country, especially since General George Washington created the American policy on the handling of prisoners, then what you've done is you've given an option for people to exploit that loophole.

Debating effectiveness

Neil Livingstone
Terrorism consultant
[I]f we start really doing too much in trying to have a legal regime that looks at every possible consideration in this regard, we may tie our hands too severely in terms of even normal interrogation techniques.

RAY SUAREZ: Neil Livingstone, you heard Malcolm Nance clearly worried about surrendering the moral high ground here by doing things to people while saying that we're better than the people we're doing it to. Do you worry about at all the points he just made?

NEIL LIVINGSTONE: I have great respect for Malcolm. And, of course, he makes good points. We should not be in the torture business, but I think, just as we have -- I don't like nuclear weapons. We have them. I hope we never use them. But the president is authorized, in a time of national jeopardy, to use nuclear weapons.

I think I worry about the scenario that we talked about or the scenario where we have a weapon of mass destruction in one of our cities and we don't have a lot of time to work on it. I started years ago as an interrogator by teaching people why torture was not a good means of extracting information. It doesn't work, as Malcolm says, in many cases. But there are times that severe distress may well work and it may save an awful lot of lives.

The other thing, if I can just add to it is that, again, when we start saying, "Well, you can do this, but you can't do that," the British had a huge problem in Northern Ireland on deprivation. What's too much light or too little light? What is too cold or too hot? And if we start really doing too much in trying to have a legal regime that looks at every possible consideration in this regard, we may tie our hands too severely in terms of even normal interrogation techniques.

RAY SUAREZ: Very quickly, before we go, is this conversation, this disagreement between the two of you, representative of what's going on in the wider community, people in law enforcement, people in intelligence, people thinking about tactics? Is there a debate going on inside those communities right now about the use of these tactics? Quickly.

MALCOLM NANCE: I don't believe there's a debate at all in the professional intelligence officers community. Every person that I have ever spoken to, two people who spoke on the panel today, unequivocally understand that this does not work. These are extra-legal, extra activities which have just manifested themselves in the recent years.

RAY SUAREZ: Malcolm Nance, Neil Livingstone, gentlemen, thank you both.

MALCOLM NANCE: Thank you.

NEIL LIVINGSTONE: Thank you.

JUDY WOODRUFF: Neil Livingstone and Malcolm Nance will answer your questions about waterboarding in an Online Forum. To participate, you can go to our Web site at PBS.org.