President Trump’s first nominee to serve on the second most powerful federal court refused to unequivocally describe waterboarding as “torture.”
Gregory Katsas — picked to fill a vacancy on the DC Circuit Court of Appeals — told Sen. Dick Durbin (D-Ill.) on Tuesday that the coercive technique was “likely torture, in many circumstances.”
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“I hesitate to answer the question in the abstract not knowing the circumstances or the nature of the program,” Katsas told Durbin at his confirmation hearing before the Senate Judiciary Committee. He noted that waterboarding “has been abandoned.”
Durbin shot back, claiming that it wasn’t abstract and that the McCain Amendment, which was passed in 2006, expressly prohibited waterboarding.
President George W. Bush authorized the interrogation tactic, after launching the War on Terror, in the wake of the 9/11 attacks. The technique involves pouring water over a cloth placed on a blindfolded detainee’s open mouth. It is designed to simulate drowning.
The so-called Senate Torture Report, overseen by Dianne Feinstein (D-Calif.), said in 2014 that the Bush waterboarding program “was physically harmful,” and caused “convulsions and vomiting.” One detainee was rendered “completely unresponsive, with bubbles rising through his open, full mouth.”
“Internal CIA records describe the waterboarding of [alleged 9/11 mastermind] Khalid Shaykh Mohammad as evolving into a ‘series of near drownings,'” the report also states.
Believing waterboarding was no longer up for legal discussion, Durbin asked Katsas: “Why is this still a matter in doubt?”
Katsas replied that the McCain Amendment didn’t specifically bar waterboarding, but rather “cruel, inhuman, or degrading treatment.”
“It clearly could be, no question about it,” Katsas said, when asked if waterboarding was “cruel, inhuman or degrading.”
Durbin said he was “surprised by the exchange.”
“There clearly is uncertainty in your answer,” the liberal senator remarked.
Sen. Ted Cruz (R-Texas), who followed Durbin, was satisfied with Katsas’ reply, seizing on the jurist’s reluctance to comment “in the abstract.”
“It’s fair to say you’d look to whatever Congressional statutes spoke to the issue, and any federal and congressional definition of torture,” Cruz said, echoing Katsas’ claim that specifics matter.
The DC Circuit has unique oversight power. It is the only appellate court with nationwide jurisdiction, and it almost exclusively rules on federal agencies’ activities.
While on the campaign trail last year, President Trump promised to bring back waterboarding “and a hell of a lot worse.” Trump has since said he would defer to cabinet officials who have advised against such a move.
Supreme Court Justice Neil Gorsuch was asked about the practice, during his confirmation hearing earlier this year. Gorsuch told the Senate Judiciary Committee that “no one is above the law — including the President,” when asked about Trump’s campaign vow.
“[T]orture, as well as cruel, inhuman, and degrading treatment, is expressly prohibited by law,” Gorsuch said in a questionnaire submitted to the committee. During his confirmation, Gorsuch also noted that the McCain Amendment outlawed waterboarding. Both Gorsuch and Katsas served in the Bush Administration at the Justice Department.
Another one of the President’s more hardline campaign trail promises came up in an April confirmation hearing, when CIA General Counsel nominee Courney Elwood was asked about Trump’s pledge “to take out their families,” referring to civilians related to Islamic State fighters.
Elwood said such rules of engagement “would implicate a variety of laws” and that it would target “persons who are not otherwise lawful targets under existing law.” But she did not state that the deliberate targeting of families was explicitly illegal.
“If confirmed, I will work to ensure that all activities of the CIA fully and faithfully comply with the Constitution and US law,” she said.