Waterboarding legal

According to Former Assistant U.S. Attorney Andrew McCarthy:

AM: I think the use of waterboarding has never been illegal in the United States. No prosecutor who was a competent, professional prosecutor doing a non-politicized case would indict a waterboarding case, because there’s not enough certainty that it’s actually been illegal. And in fact, I think the better of the argument is that it hasn’t been illegal.

HH: Has Congress had ample opportunity to define waterboarding as illegal and it refused to do so, Andy?

AM: Yes, they absolutely have. In fact, it came up directly, the question came straight up in the Senate, and they voted it down, to add waterboarding. They also, Hugh, did, if you remember I think it was a couple of years ago, they did a major amendment to the War Crimes Statute. I believe it was in connection with the Military Commissions Act in ’06 where they clarified the atrocities that would be prosecutable for war crimes. They could certainly have added waterboarding. Everybody knew at that point that it was a controversial issue, and yet again, they ducked it.