JIM LEHRER: Waterboarding, several high-ranking members of the Bush administration this week gave differing views on that interrogation technique. NewsHour correspondent Kwame Holman has that.
KWAME HOLMAN: Before the Senate Intelligence Committee on Tuesday, CIA Director Michael Hayden became the first Bush administration official to confirm publicly the CIA had subjected three senior al-Qaida prisoners to waterboarding following the 9/11 attacks.
Waterboarding has been described as controlled drowning, an interrogation technique many consider to be torture.
GEN. MICHAEL HAYDEN, CIA Director: The CIA has not used waterboarding for almost five years. We used it against these three high-value detainees because of the circumstances of the time. Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent.
KWAME HOLMAN: Later, Senator Dianne Feinstein asked the director of national intelligence, Mike McConnell, to explain remarks he made to the New Yorker magazine concerning waterboarding.
SEN. DIANNE FEINSTEIN (D), California: I gather that you felt that, for yourself, if used, waterboarding would, in fact, constitute torture. Is that correct?
VICE ADM. MIKE MCCONNELL (Ret.), Director of National Intelligence: No, ma’am, it’s not correct. The question is, is waterboarding a legal technique? And everything I know, based on the appropriate authority to make that judgment, it is a legal technique used in a specific set of circumstances. You have to know the circumstances to be able to make the judgment.
KWAME HOLMAN: At the White House on Wednesday, spokesman Tony Fratto was asked to explain the administration's legal thinking on the matter.
JOURNALIST: What about it makes it not torture now? Is it just the circumstances?
TONY FRATTO, Deputy White House Press Secretary: What the attorney general said was that any use of any enhanced interrogation technique depends on the circumstances, who is carrying out the interrogation, who the target of the interrogation is, what the threat environment is. What is the information that you're attempting to seek?
JOURNALIST: Senator Durbin's asked for an investigation. You don't think it's necessary?
TONY FRATTO: I'd leave that decision to the Department of Justice.
KWAME HOLMAN: Yesterday, Attorney General Mukasey spoke for his department before the House Judiciary Committee.
REP. JOHN CONYERS (D), Michigan: Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?
MICHAEL MUKASEY, U.S. Attorney General: That's a direct question, and I will give a direct answer. No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.
KWAME HOLMAN: Later, spokesman Fratto sought to clarify the legal underpinnings guiding what the administration calls its "enhanced interrogation" program.
TONY FRATTO: We have made clear that the law has changed, that it has given greater clarity to these questions and to the policy of the United States, but we are not going to speculate on the future. That's all we've said.
JOURNALIST: No, but what you're saying -- sorry, Tony -- what you're saying is that the law has changed, but it has not changed enough for a blanket, "We rule this out forever."
TONY FRATTO: Well, I think that's clear.
KWAME HOLMAN: But yesterday, before the House Intelligence Committee, Director Hayden seemed to say the legality of waterboarding under current law was in question.
GEN. MICHAEL HAYDEN: It's not a technique that I've asked for. It is not included in the current program. And, in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute.
Cheney defends CIA tactics
KWAME HOLMAN: Also yesterday, before the Conservative Political Action Conference, the vice president forcefully defended the CIA and the administration's interrogation practices as necessary and valuable.
DICK CHENEY, Vice President of the United States: A small number of terrorists, high-value targets, held overseas have gone through an interrogation program run by the CIA. It's a tougher program for tougher customers.
These include Khalid Sheikh Mohammed, the mastermind of 9/11. He and others were questioned at a time when another attack on this country was believed to be imminent. It's a good thing we had them in custody, and it's a good thing we found out what they knew.
The procedures of the CIA program are designed to be safe, and they are in full compliance with the nation's laws and treaty obligations.
KWAME HOLMAN: By week's end, some congressional Democrats said they would continue to press the administration on the waterboarding issue.
JIM LEHRER: And back to Shields and Brooks.
So, David, what is the administration's position on waterboarding?
DAVID BROOKS, Columnist, New York Times: Well, what we just saw there was a whole bunch of administration officials who wish they could say in a very forthright way what they think about waterboarding and torture, and who come close to saying it, but are prevented from being forthright because of the last speaker in that little piece.
And I think what's essentially happened is that, in 2002, the country had this cloud hanging over it, and the law was unclear, and they did engage in torture.
And there were 30 briefings on Capitol Hill, and Nancy Pelosi didn't object. Jay Rockefeller didn't object. Democrats and Republicans were all under the fear of 9/11.
The fear abated. A little more sensible thinking came. People basically decided torture was bad, counterproductive, didn't work, disgraceful. And everybody I think has moved on except for one person, and that was the vice president.
JIM LEHRER: Mark?
MARK SHIELDS: It wasn't torture. It was "enhanced interrogation." And it wasn't here. It was done overseas, the vice president -- that apparently gives it a moral absolution that I was not aware of.
2008 election will close the issue
MARK SHIELDS: I don't think there's any question that, as we go into this campaign, the only guarantee we have is that January 2009, who's ever elected, it's going to change. I mean, certainly, John McCain has been conspicuous...
JIM LEHRER: He's stronger on it than anybody.
MARK SHIELDS: He's stronger on it. Obama is clear on it. Senator Clinton has not spoken specifically about waterboarding.
But my favorite exchange of the week was when Senator Kennedy asked the attorney general, "Would waterboarding be torture if it were done to you?" And he said, "Yes."
And he said, "Under what circumstances would waterboarding be lawful?" He said, "I couldn't answer that question, because it might tell our enemies exactly what they can expect in these eventualities."
I mean, this is a discussion and a debate that just cries out for clarity, and John McCain has provided it.
JIM LEHRER: Do you agree with Mark, David, that no matter who's elected president it's going to be somebody who's going to end this, whatever is going on?
DAVID BROOKS: Yes. And I think no matter who had been elected -- I really do think it was a culture of the time, 2002. People thought we were going to be bombed again, and people were willing -- their mindset was different.
And that's why the Capitol Hill hearings produced no large protests. Now I think that fear has abated somewhat, and John McCain has personal experiences and appalled by the thought.
JIM LEHRER: What about CIA Director Hayden? Did you interpret what he said as he's -- "Whatever these other guys are saying, here's what I'm saying, and I think it's illegal."
MARK SHIELDS: He's an impressive, I think, public figure. And I thought -- that came through loud and clear to me, that...
JIM LEHRER: First of all, he's the one who confirmed it was happening...
MARK SHIELDS: That it was happening. He's the first person to confirm that it had happened, and the specifics. And he went on record yesterday, I mean, I think that was crystal clear that there's not going to be anymore on his watch.
JIM LEHRER: That's right.
DAVID BROOKS: He's important, because the CIA has been the one lobbying for it. And if the CIA is against it, then everybody is against it. It's not been a Pentagon thing, remember.
JIM LEHRER: That's right. It's been out of that for some time.
DAVID BROOKS: Right.
MARK SHIELDS: You would kind of like leadership from the Department of Justice on something like this, on the law.JIM LEHRER: OK, thank you very much.