A Bush administration memo from 2005, intended to establish a legal basis for aggressive interrogation techniques, contains a footnote that actually describes waterboarding as falling within the administration's definition of torture.
The footnote, found within one of the Office of Legal Council memos released by the Obama administration on Thursday, suggests that officials in the previous White House likely knew that they were torturing terrorism suspects at a time when they claimed to not be involved in such a practice.
Bush officials also acknowledged in a different footnote that for a period of time, waterboarding was "used with far greater frequency" and "intensity" than advised, so much so that medical personnel could not confirm the safety of the detainees. Authors of the memo said they instructed interrogators to change their use of the technique to make it more similar to its practice in Marine Corps training.
The May 10, 2005, memorandum from the attorney general's office to the CIA defines torture as -- among other things -- activity where a subject suffers prolonged mental harm caused by or resulting from "the threat of imminent death." From there, waterboarding was justified as a technique that, while possibly qualifying as a "threat of imminent death," had "safeguards" in place "that make actual harm quite unlikely." The qualifier seemed to clear the Bush White House of illegality.
But in a footnote at the bottom of page 43 of that same memo, the authors dropped the formalities. "For purposes of our analysis," the footnote reads, "we will assume that the physiological sensation of drowning associated with the use of the waterboard may constitute a 'threat of imminent death' within the meaning of sections 2340-2340A."