In addition, the Pentagon published a new Army field manual in 2006 that limits interrogation techniques and bans harsh methods, including waterboarding, hoods and mock executions. And the Supreme Court in 2006 struck down the Bush administration's system for holding and prosecuting detainees, saying it failed to provide protections under the Geneva Conventions.
Sen. Lindsey Graham (R-S.C.), one of the Republican sponsors of the 2006 Military Commissions Act, said in a telephone interview Wednesday that at the time the bill was passed he was assured by the Bush administration that the law would specifically prohibit waterboarding.
But Fratto appeared to contradict that, saying that the Justice Department had reviewed waterboarding and "made a determination that its use under specific circumstances and with safeguards was lawful." The CIA is not currently authorized to use waterboarding, he said, adding that "we're not going to be able to speculate on what might be the case in the future."
Fratto outlined a series of steps that would be required before waterboarding or other coercive methods would be approved. He said that the CIA director would have to make a proposal to the attorney general, who would have to review the interrogation plan to determine whether it would be legal and effective.
"At that point, the proposal would go to the president; the president would listen to the determinations of his advisors and make a decision," Fratto said.
Fratto's comments echoed statements by Hayden as well as Director of National Intelligence J. Michael McConnell in testimony before the Senate Intelligence Committee on Tuesday. In referring to special circumstances under which more aggressive methods might be authorized, administration officials may be making the case for a kind of sliding scale for detainee treatment.
Malinowski said the administration may be seeking to define a loophole in international laws banning prisoner treatment that would "shock the conscience." That standard, the administration might argue, could shift dramatically if there was reason to fear the country was in danger of imminent attack.
But even so, McCain and Graham recently signed a letter to Mukasey saying that it was "beyond dispute that waterboarding 'shocks the conscience.' " And other experts said it would be more difficult to make such interpretations of the Geneva Conventions and other standards.
Feinstein has sponsored a provision in a pending intelligence bill that would require the CIA to abide by the stricter interrogation rules in the Army field manual. The measure has already passed the House and is expected to be considered by the Senate in the coming weeks. Bush has threatened to veto the bill.
During Tuesday's testimony, Hayden said that depriving the CIA of enhanced techniques would place America in greater danger. After the hearing, a senior U.S. intelligence official argued that waterboarding should not be considered torture because the U.S. military has subjected its own personnel to the method to prepare them for the possibility of being captured.
"Tens of thousands of American Air Force and naval airmen were waterboarded as part of their survival training," said the official, who spoke on condition of anonymity. "We don't maim as part of our training. We don't mutilate. We don't sodomize. Those are things that are always bad. . . . Intellectually, there has got to be a difference between [waterboarding] and the others; otherwise we wouldn't have done it in training."