On the U.S. Duty to Prosecute War Crimes (Part II)

(For part one of this article, please click here.)

The most common objection made to those who proclaim a duty to prosecute torture crimes under the UN Convention Against Torture (CAT) treaty concerns the treaty's non-self-executing status. A typical discussion occurred at The Volokh Conspiracy website a few weeks ago:

For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).

Section 7 of the Convention Against Torture thus is not judicially enforceable.

But, even in a decision by the Roberts court, it was found that non-self-executing treaties "still constitute international obligations." The quote comes from Medellin v. Texas, where the court ruled that the President could not enforce by himself, minus any implementing federal law, the provisions of the Vienna Convention/World Court. Let's look at one particularly relevant passage, however, in the majority opinion in the case, which proponents of weakening the CAT treaty's requirement to prosecute torture might want to ponder (emphasis added):

... under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. (Majority Opinion, p. 24-25)

Yoo vs. the Supremacy Clause of the Constitution

The dissent in Medillin, by Justice Breyer, and joined by Justices Souter and Ginsburg, describes some of the underlying case law that supports the idea that the Supremacy Clause of the Constitution is in effect for all approved treaties:

The Clause means that the “courts” must regard “a treaty . . . as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson, 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.)....

... by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land.” Lessee of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Baldwin,J., concurring).

Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more.See Appendix A, infra (listing, as examples, 29 such cases,including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence).

Not surprisingly, we see John Yoo quoted in Medellin as a legal expert on the issue of non-self-executing treaties. Yoo is an ideologue who helped write a series of memos that justified the use of interrogation techniques that amount to torture. In his essay, "Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding," Yoo argues:

This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation.... It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that could independently execute treaty obligations. The Framers also anticipated that Congress’s control over treaty implementation through legislation would constitute an important check on the executive branch’s power in foreign affairs.

How strange that Yoo argues here for a check on the executive branch, he who has argued elsewhere for a powerful executive with massive wartime powers. But not strange when you realize that all these legal opinions are meant to cynically promote a particular political agenda in which U.S. foreign policy is free of international constraints. If in the case of treaty law this means eviscerating the executive's power to enforce the law of the land, so be it, all the better to eliminate the constraints of international law upon mighty America.

As to Yoo's contention that "Congress’s control over treaty implementation through legislation" was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):

The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically....

Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “executed,” taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277.

But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276), further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. (Dissent, p. 6)

As one last point, let's look once more at the language of the Convention Against Torture, or rather the U.S. Reservations to CAT, Section II (5)(emphasis added):

5. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.

One can argue that lacking legislative implementation, that the overwhelming intention of the treaty demands, as Justice Roberts wrote, that the U.S. fulfill its "international obligations". If the Democratic Party-led Congress wants to make matters even more clear, it can pass laws to specifically implement Sections 4, 5, and 7 of CAT.

Law, Politics, and the Fight Against Torture

At bottom, the legal questions are subsidiary to the political issues and intent. As Yoo's seeming apostasy regarding executive power makes clear, the argument about the various Federal powers comes down to supporting those policies that allow the U.S. to pursue untrammeled a free hand to intervene and act any way it wants anywhere in the world. Arguments about strict constructionism, or judicial activism, or the intent of the Framers is really an argument about how the U.S. should operate in the world today.

We reap today the failures of our society and its legal and governmental systems to address massive violations of international law for decades now. The greatest violator is the CIA (and sometimes the U.S. military), who countenanced and/or engaged in torture in Guatemala, Greece, Brazil, and South Vietnam (the Phoenix Program), and now, in Afghanistan, Iraq, and putative U.S. soil at the Guantanamo Naval Base and also undeniable U.S. territory, the U.S. Navy brig at Charleston (Jose Padilla). For decades, human rights and international law has been violated by the U.S. government, which has done its best to hide the fact via "plausible deniability", legalistic loopholes, and reliance on "state secrets" claims of national security (such as the Obama administration has now claimed in more than one instance).

A key instance of this point is the recent finding by the Justice Department’s Office of Professional Responsibility that the memos justifying torture written by Yoo and others were, as Jason Leopold reports in a current article, "tainted by political influence":

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

Moreover, it seems, according to a Newsweek report, that Bush Attorney General Michael Mukasey tried to squelch the OPR report. These kinds of intrusions into how the law operates, or rather the institutions of the law, are not aberrations. They are the direct consequences of political programs and societal conflicts in action. They will never totally go away, and they call for political action -- legislative, judicial, and actions by the members of civil society, that is, by citizens -- to redress the wrongs implemented by reactionary sections of the society.

The duty to prosecute the war crimes of the past administration is not only about fulfilling international obligations, or rendering justice to victims, it is about deciding the very direction this country is headed. It is not hyperbole to say that the existence of whatever is left of democracy in this country is at stake. We must prosecute and punish Bush, Cheney, et al. for their war crimes. To fail yet again, as after the Vietnam War, is unthinkable. It would mean a further degeneration of U.S. democracy into something unrecognizable, into out and out tyranny.

Closing Guantanamo?

Today's Washington Post has an article reporting that Secretary of Defense Robert Gates is telling the military to draw up a plan for the closing of Guantanamo, preparatory to any order to do so by soon-to-be president Barack Obama.

While the closing of Guantanamo would be welcome news, it may not be great news, depending on how the U.S. deals with the prisoners there, with their unconstitutional military commissions system, and the general policy of coercive interrogation and detention set up as a wide-spread gulag, including both traditional military and CIA prisons around the world (and even in the U.S., if you include a few Navy military brigs).

Hence this news leads me to say, so what? I'll wait to see what they devise. The Bush Administration took certain "high profile" prisoners out of CIA prisons, where they were tortured and sent them to... Guantanamo. Whether or not this was an improvement for the prisoners, which included so-called 9/11 "mastermind" Khalid Sheikh Mohammed, I'll leave for them to say.

Already, the Post is acting as a conduit for the subtle preparation of public opinion for something unacceptable (emphasis added):

Any plan will probably address whether to also abolish the military commission system and, if so, what kind of legal framework can be substituted to put detainees on trial.

As I noted here in a posting on November 10, NO to Proposal for New Terrorist Courts, the Obama team (or some members of it) are considering the construction of some new kind of "terrorist" court.

The new courts appear to be the brainchild of Harvard law professor Laurence Tribe, who described them as "some sort of hybrid" legal system, involving military commissions that would "both be and appear to be fundamentally fair in light of the circumstances." Tribe says we'll just have to trust Obama on this, and give him "the benefit of the doubt"....

What struck me about Obama/Tribe's plan for a "hybrid legal system" was its similarity to the old proposal by soon-to-be-former Attorney General (and stooge) Michael Mukasey to establish "national security courts". Where Anthony Romero looks at the Moussaoui and Padilla prosecutions and sees the sufficient functioning of the current legal system, Mukasey, in an article published in the Wall Street Journal in August 2007, describes a situation where "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."

Mukasey's argument for a new special kind of court in which to try "terrorists" sounds suspiciously like what is known thus far about the Obama/Tribe proposal.

There is already a legal framework to put detainees on trial -- the federal justice system. The quote from the Post at the beginning of this comment is another trial balloon. We must be vigilant as the old order intends to do everything it can to insinuate itself, or rather perpetuate itself, in this new administration. It's unclear to what degree Obama and his allies can counter this, or even have the will to do so.

The ACLU said at the time of the Tribe discussion:

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can't, you've got to release them. That's our system.

H/T Kula2316 at Daily Kos

NO to Proposal for New Terrorist Courts (Updated)

It's with a great deal of hope that Barack Obama will be inaugurated President next January. In regards to the Bush Administration's policy on torture and indefinite detention, as represented by the ongoing incarceration of hundreds of prisoners at Guantanamo Naval Base, Obama announced in August 2007: "As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions."

Meanwhile, a new Associated Press story reports that Obama's advisers are working on a plan to close Guantanamo prison, release some of the prisoners, and send the rest to trial in the United States. This would be a welcome act indeed, and the ACLU has published a full-page ad in the New York Times (see link first paragraph), asking Obama to close Guantanamo by executive order on the first day of his presidency.

Unfortunately, the new plan carries a significant flaw: Obama is proposing the creation of "a new legal system to handle the classified information inherent in some of the most sensitive cases." [Please read update below]

The new courts appear to be the brainchild of Harvard law professor Laurence Tribe, who described them as "some sort of hybrid" legal system, involving military commissions that would "both be and appear to be fundamentally fair in light of the circumstances." Tribe says we'll just have to trust Obama on this, and give him "the benefit of the doubt."

No, Professor Tribe, we do not have to do that, and we won't do that. A spokesman for the ACLU responded to the new plan for a post-Gitmo judicial system:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, said Monday. "We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems."

"A Quick Dirty System"

The ACLU has had more to say on this subject, most recently in an interview by Glenn Greenwald of Salon.com with Anthony Romero, the executive director of the American Civil Liberties Union, earlier today (apparently before the AP story broke). Greenwald asked Romero if the transfer from Guantanamo of "several hundred highly complex cases to the federal judiciary" would administratively overwhelm the courts. Romero responded:

I don't want a quick dirty system that dispenses with people's rights in a too expedient and a too quick a manner.

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can't, you've got to release them. That's our system.

Greenwald then asked about the argument that "the rules have to be different for people engaged in acts of war." Evidence typically cannot easily be gathered at the scene; the prosecution often relies on classified information and secret witnesses; the burden of proof seems inappropriate in such cases, as compared to domestic prosecution of criminals. Romero replied in some detail, as these matters are not typically known or discussed among non-attorneys, and certainly not as sound-bites on either the liberal or the conservative news shows:

We understand that these cases may represent different legal theories than the thug on the street who picked up my wallet, right? We have procedures in place to deal with them. We have the Classified Information Procedures Act, which allows us to put evidence before judges and make sure that if they're classified or if they represent issues on national security they're not broadcast to the public, therefore jeopardizing national security further. We have ways of making sure that witnesses are protected in coming forward, so that they're not open to further attacks by other terrorists who might be still out there.

And I think it was a great report, that wasn't put out by us - I would have loved to have put it out - it was put out by a group of former prosecutors and former military officials, Human Rights First, that said that our existing criminal justice system, and our existing UCMJ system, the Uniform Code of Military Justice system, is perfectly equipped to deal with these types of cases. We've done it before. In fact, we've done it even in the Bush administration; we have Zacarias Moussaoui and Padilla prosecuted under federal criminal courts. And what we need is to make sure we have a neutral set of rules.

As news of the hybrid courts plan begins to filter through the media and blogosphere, initial reaction has been negative. Spencer Ackerman described his reaction in today's Washington Independent, while noting that this "plan" has all the earmarks of a "leaked" proposal:

The AP’s reporting suggests Obama is considering a “hybrid process” between the military commissions and the full process enjoyed by U.S. citizens. If there’s anything the military commissions process should have taught, it’s that reinventing the legal system doesn’t work, as demonstrated by the bevy of military lawyers who have resigned in protest of the commissions.

The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees — including, in many cases, torture — would never be admissible in any court worthy of the name. That’s the Bush administration’s legacy. But it can’t be the basis for cheapening our legal system.

The Return of Mukasey's "National Security Courts"?

What struck me about Obama/Tribe's plan for a "hybrid legal system" was its similarity to the old proposal by soon-to-be-former Attorney General (and stooge) Michael Mukasey to establish "national security courts". Where Anthony Romero looks at the Moussaoui and Padilla prosecutions and sees the sufficient functioning of the current legal system, Mukasey, in an article published in the Wall Street Journal in August 2007, describes a situation where "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."

Mukasey's argument for a new special kind of court in which to try "terrorists" sounds suspiciously like what is known thus far about the Obama/Tribe proposal:

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means....

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

John C. Coughenour, the federal judge who presided over "the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport" critiqued Mukasey's proposal in an op-ed in the New York Times in November 2007:

It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy....

Judge Mukasey raises a legitimate concern about whether open judicial proceedings may compromise intelligence gathering. But courts are equipped to meet this challenge. The Classified Information Procedures Act provides a set of rules for criminal cases...

Certainly this system cannot entirely prevent any misuse of information; the mere fact of an arrest may tell a story we’d rather our enemies not hear. But our system provides a sensible way to protect national security while maintaining some degree of transparency.

Hope and Foreboding

I and others have noted that the weakest link in Obama's claim of liberal program is his adherence to the language and intent of Bush's "War on Terror." It was not clear during the campaign if this was Obama's nod to the center of American politics, or a real conviction. The first signs coming from the Obama camp are still mixed, but there is a real wind of foreboding. President-elect Obama has made clear signs he plans to close Guantanamo. I would like to hear that he will also withdraw the executive order by Bush that allows the CIA to practice "enhanced" techniques of interrogation, i.e., to practice psychological torture.

But this first trial balloon from the Obama camp on torture and terrorism is redolent of the rejected policies of Bush's Justice Department. I do not expect Obama to listen to the complaints of one little blogger, but I do expect the progressive community to speak out and speak out forcefully against any and all attempts to restrict constitutional rights, whether such attempt comes from the left or the right.

Update: Well, this is what comes with writing a "breaking" diary. The Obama team has announced that Obama is not considering any kind of new court for detainees. Per Talk Left:

"....There is absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until his national security and legal teams are assembled," said Denis McDonough, a senior foreign policy adviser for the transition team, in a statement.

This is certainly great news. I can't know why the leak was made about the "new" courts. In any case, I am letting the article stand as a discussion of the general issues, and removed Obama's name from the title.

As Jeralyn at TalkLeft put it:

There's only one right answer here. Close Guantanamo on day 1 and try the detainees either in U.S. criminal courts or military courts operating under the Uniform Code of Military Justice.

Please note, Meteor Blades has written contemporaneously with this piece an excellent front page diary at Daily Kos covering much of this subject matter. He makes some additional points about closing ALL the torture prisons, which I neglected to make in this piece.

Constitutional Freedoms in Peril

Two important articles have been published at AlterNet in the past week. Liliana Segura discusses a crucial footnote in the newly declassified Yoo memo, referring to another secret memo, written shortly after 9/11, and, in the name of national security, dispensing with the Fourth Amendment."

Yoo's footnote (page 8 of the memorandum) arrives during a discussion of the purported inapplicability of the Fifth Amendment Due Process clause in wartime. Yoo cites the inapplicability of the Fourth Amendment, too, overseas, and then, in a footnote, continues (emphasis mine):

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001).

For those who may have forgotten, or don't know, Segura explains the import of the matter:

The Fourth Amendment, of course, lays out "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Critics of the Bush administration's warrantless wiretapping program -- which was started in the same weeks the memo was written -- have staked their claims in part on its violation of this right. Proof that the program originated at the same time that the White House officially jettisoned the Fourth Amendment in the name of national security is a damning -- if not surprising -- revelation.

Robert Parry of consortiumnews.com wonders "Will the Constitution Be Altered to Eliminate Key Liberties?"

Though little discussed on the campaign trail, a crucial issue to be decided in November is whether the United States will return to its traditions as a constitutional Republic respecting "unalienable" human rights or whether it will finish a transformation into a frightened nation governed by an all-powerful President who can do whatever he wants during the open-ended "war on terror"....

While most news coverage of Yoo's March 14, 2003, memo has focused on the legal gymnastics justifying harsh treatment of detainees -- including possible use of mind-altering drugs -- the centerpiece of Yoo's argument is that at a time of war the President's powers are essentially unfettered.

While refusing to do much about the situation, even Senator Dianne Feinstein was surprised enough about the inclusion of the secret 10/23/01 memo referenced in Yoo's footnote, and it's reference to the suppression of the Fourth Amendment for domestic military activities, she questioned Attorney General Michael Mukasey about it at an Appropriations Committee session on April 10. According to the Washington Post:

Attorney General Michael B. Mukasey told senators yesterday that a 2001 Justice Department memo insisting that Fourth Amendment safeguards against unreasonable searches did not cover military activities within the United States is "not in force."

Under sharp questioning from Sen. Dianne Feinstein (D-Calif.) at an Appropriations Committee hearing, Mukasey said that the "Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime," even though the memo by the department's Office of Legal Counsel had concluded otherwise.

The Post story is misleading, however, although correctly noted that Mukasey was dragging his feet on declassifying the Oct. 2001 memo. But The Post's lie is telling, because in fact Mukasey would not say whether the ruling that the Fourth Amendment is inapplicable to "domestic military operations" (like, say... domestic military spying!) is "in force" or not.

Paul Kiel at TPMMuckraker caught the exchange -- which I also saw -- and reported it correctly:

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo....

"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"

"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.

"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.

"There are no domestic military operations being carried out today," Mukasey replied.

"I'm asking you a question. That's not the answer."

"I'm unaware of any domestic military operations being carried out today," he repeated.

"You're not answering my question," she said.

Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board....

"The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

Maybe Mukasey's last statement is what the Post jumped on, but given the previous exchange, I don't think anyone can say for sure (although Feinstein was reportedly satisfied.) I've bolded Mukasey's key sentence, which sounds like a lot of gobblety-gook to this non-attorney. Anyway, here's the video and you can decide:

The Wages of Fear: What the Waterboarding Debate is Really About

In the famous verse from Romans 6:23, "the wages of sin is death." For U.S. policymakers (for the entire government is now implicated in this, not just the Bush Administration), terrorism is the ultimate "sin." And if they capture you and believe or choose to believe you are a terrorist, then you, or anyone, can expect waterboarding and other forms of "enhanced interrogation" torture. Worst of all, you will certainly fear them. And that fear is debilitating over time. It breaks a person down psychologically. Of course, that is the whole point of the whole waterboarding brouhaha.

Yesterday the White House announced what we already knew in our heart of hearts was their position.

Waterboarding is legal, White House says:

WASHINGTON -- The White House said Wednesday that the widely condemned interrogation technique known as waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.

The surprise assertion from the Bush administration reopened a debate that many in Washington had considered closed. Two laws passed by Congress in recent years -- as well as a Supreme Court ruling on the treatment of detainees -- were widely interpreted to have banned the CIA's use of the extreme interrogation method.

But in remarks that were greeted with disbelief by some members of Congress and human rights groups, White House spokesman Tony Fratto said that waterboarding was a legal technique that could be employed again "under certain circumstances."

The day before:

CIA Director Michael V. Hayden acknowledged that his agency used the simulated-drowning technique on Khalid Sheikh Mohammad, the suspected mastermind of the Sept. 11, 2001, terrorist attacks, his lieutenant, Abu Zubaydah, and Abd al-Rahim al-Nashiri, a suspect in the USS Cole bombing in Yemen in 2000.

Finally, today Michael Mukasey demonstrated that he can drink the kool-aid with the best of them, telling House Judiciary Committee Chairman John Conyers that the waterboarding of past suspects in the "war on terror" will not be prosecuted because they were, at the time -- surprise! -- "authorized."

From today's Washington Post (emphases in bold are added):

In testimony before the House Judiciary Committee, Mukasey said that because waterboarding was part of a program approved by Justice lawyers, there is no way the department can open a criminal investigation into the practice....

"That would mean that the same department that authorized the program would now prosecute someone for taking part" in it, he said.

Mukasey's remarks were a direct rebuff to demands from many leading Democrats this week that the Justice Department open a criminal probe into the CIA's use of waterboarding, an interrogation technique that simulates drowning in an attempt to force information from a prisoner.

The statements also appear to conflict with his testimony in the Senate last week, when Mukasey said on several occasions that a special U.S. attorney's probe into the CIA's destruction of videotapes could be expanded to include a probe of interrogation tactics shown on the tapes.

I'd add that the statements also appear to conflict with basic decency and humanity, but then, that's me.

Meanwhile, in a just released Time.com story:

Lawyers representing one current Guantanamo detainee tell TIME that they plan to present evidence that he was subjected to videotaped interrogation, in addition to unspecified "systematic torture" when he was held in secret CIA prisons. The lawyers, from the Center for Constitutional Rights, a New York-based legal non-profit with a long record of advocacy for prisoners at Guantanamo, note that their client has said the videotaping occurred after his arrest in 2003.

The Guantanmo detainee in question is 27 year old Majid Khan. Arrested in Pakistan, and ultimately transferred to Guantanamo with other "high-level detainees," like Khalid Sheik Mohammad, Khan's case threatens to break through the legal restrictions of secrecy surrounding the government's "terror" prosecutions:

Khan's lawyers have said their client has gone on a hunger strike to protest the conditions of his confinment, and appears pale and gaunt. In the course of meetings with counsel and the Red Cross, Khan also handed over neatly penned, handwritten letters. Several have been made public, after heavy redactions imposed by U.S. military censors. One of Khan's messages begins: "In this letter I am going to mention some of the things I have been through." Then the next 19 lines of text are blacked out.

But Khan's private declarations to his lawyers cannot be censored, and it is those that the Intelligence Committee will hear on Friday. His allegations come at a time when Congress is considering passage of a new intelligence bill that would effectively outlaw many of the CIA's interrogation methods by forcing the Agency to use only those techniques permitted in the U.S. Army Field Manual.

While it will be good to hear evidence examined without censorship, I want to concentrate at this point on the last claim in the Time quote above.

Why Can't They Torture the Good Way?

The ACLU and other liberals (and even some Republican types, most famously GOP candidate John McCain) make a big deal out of the fact that the Army Field Manual proscribes waterboarding and other "enhanced" forms of interrogation. It's as if the AFM provides a good set of non-coercive techniques, as asserted in Senate hearings the other day.

Both Robert S. Mueller III, director of the Federal Bureau of Investigation, and Lt. Gen. Michael D. Maples, director of the Defense Intelligence Agency, told lawmakers that their agencies had successfully obtained valuable intelligence from terrorism suspects without using what Mr. Mueller called the “coercive” methods of the C.I.A.

But [CIA Director] General Hayden bristled when asked about Congressional attempts to mandate that C.I.A. interrogators be required to use the more limited set of interrogation methods contained in the Army Field Manual, which is used by military interrogators.

For Hayden and his administration backers, the CIA is a special case. But then, it has been for six decades now, as the agency has engaged in assassinations, coup d'etats abroad, organized secret armies, and both researched and engaged in torture (also taught to willing overseas acolytes serving U.S. client states).

But no matter what Hayden or the ACLU says, no matter what Senators Hagel and Feinstein advocate respecting interrogation guidelines in their new intelligence bill, the Army Field Manual is not about non-coercive interrogation. The military lawyers who drafted the AFM waited to the end of the document to provide the proverbial fine print about certain "restricted" techniques, describing them in an obviously little-read "appendix" (Appendix M).

From an earlier article of mine:

Briefly, it allows for complete separation, sometimes with forced wearing of goggles and earmuffs, for up to 30 days (after which approval for more must be sought). It allows for keeping sleep to four hours a day, for 30 straight days. It allows for the use of other concurrent techniques, including "futility", "incentive", and "fear up" (It does ban "hooding").

Maybe you heard of "fear up" and "futility"? They're listed in CJTF-7 Interrogation and Counter-Resistance Policy, authored by Lt. Gen. Ricardo Sanchez in 2003:

Fear Up Harsh: Significantly increasing the fear level in a detainee [usually through invoking a detainee's phobias, if known]....

Fear Up Mild: Moderately increasing the fear level in a detainee.....

Futility: Invoking the feeling of futility of a detainee.

....What does separation or isolation do to an individual? In a review by Lawrence Hinkle Jr, written back in 1961, it was understood how debilitating this technique was, causing "disordered brain function"....

It is well known that prisoners, especially if they have not been isolated before, may develop a syndrome similar in most of its features to the "brain syndrome"... they cease to care about their utterances, dress, and cleanliness. They become dulled, apathetic, and depressed. In due time they become disoriented and confused; their memories become defective and they experience hallucinations and delusions. In these circumstances their capacity of judgment and discrimination is much impaired, and they readily succumb to their need for talk and companionship; but their ability to impart accurate information may be as much impaired as their capacity to resist an interrogator.

Classically, isolation has been used as a means of "making a man talk," simply because it is so often associated with a deterioration of thinking and behavior and is accompanied by an intense need for companionship and for talk. From the interogator's viewpoint it has seemed to be the ideal way of "breaking down" a prisoner, because, to the unsophisticated, it seems to create precisely the state that the interrogator desires... However, the effect of isolation upon the brain function of the prisoner is much like that which occurs if he is beaten, starved, or deprived of sleep.
"Physiological State of the Interrogation Subject" in The Manipulation of Human Behavior, 1961, John Wiley & Sons.

Waterboarding: Who Benefits... and How?

The administration back and forth on the subject of waterboarding can represent both fear in such circles over eventual prosecution, or a clever campaign to keep one's enemies off-guard regarding U.S. interrogation practices. Things got even murkier this very afternoon, as CIA Director Michael Hayden evidently told the House Intelligence Committee, in what must have been a busy day of hearings on Capitol Hill, that "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." Of course, he also maintains it was legal back in 2002 and 2003, when they used it. Get it? Got it? Good.

The CIA as an institution is all about misdirection and secrecy. It is both their ethos and their M.O. Everything I have learned about the history and practice of torture in the U.S. leads me to believe that the public story is not the full story. While there is fear about prosecution among individual interrogators in the field, the recent obfuscatory statements and actions by administration officials points to a more ominious conclusion: the CIA wants to keep waterboarding as an option, at least in the mind of the public. This is part of a torture paradigm that is centered around Fear, not just physical abuse. The CIA, and also the Army Field Manual, center the coercive portion of their agenda around the right to induce fear, whether by threatening waterboarding of prisoners, or whatever else they may do to produce Fear Up Harsh, the better to heighten anxiety and dependency in those they interrogate (torture). That's how they use and understand torture, and the sooner we all understand that, the better.

Mukasey's statement that there would be no waterboarding prosecution may make it a red letter day for government interrogators and torturers. It goes without saying that it is a dark day for this country as a whole.

Impeach Mukasey Now: Waterboarding Not Torture According to Bush's AG

Actually, what Michael B. Mukasey said today at his Senate oversight hearing was that waterboarding, under non-specific certain circumstances, is not torture. Of course, he couldn't say that outright; he said it in legalese. In the obscurity of U.S. law, torture is defined as something that "shocks the conscience." And Mukasey, squirming before Sen. Dick Durbin's questioning, feels that after extensive review, piles of documents and opinions, the question of waterboarding is -- sometimes -- "unresolved."

Here's some of the testimony between Durbin and Mukasey (thanks to Firedoglake):

Durbin: This chamber has voted on a bipartisan basis against torture.

MM: And the chamber voted down a prohibition on waterboarding.

Durbin: If the detainee treatment act is clear, and even went so far as to offer amnesty to employees of the govt, you still think that the jury's out on whether the Senate believes that waterboarding is torture.

[Lots of long silences on Mukasey's part.]

MM: The question is whether the Senate has spoken clearly enough on that issue.

Durbin: Where's the lack of clarity in the McCain legislation?

MM: Words that are general, words that people on both sides of the debate have already disagreed. To point to this language or that language is to pick nits.

Durbin: As the Chairman has noted here, McCain, Warner, and Graham, lead sponsors of this legislation, have said waterboarding is a war crime.

Durbin: Standard so far has depended on circumstances. Do you see a problem with your ambivalence. It's due caution.

[mumble mumble mumble]

MM: Your second question. I said waterboarding would not shock the conscience. I described a situation where it would. So far as it would be, that was something put into place by the person who wrote the opinion. [Is this the Bradbury opinion??] The use of such techniques to discover information that was only historical information would not shock the conscience.

Durbin: if it would save many lives, would that shock the conscience. Under the military interrogation standards. They are not interested. You're saying that when it comes to non-military, it is still unresolved.

MM: It is unresolved.

Unresolved? Mukasey -- a lackey if there ever was one -- means: we want to keep it "unresolved." We need to do whatever we want. We embrace legalistic loopholes. We embrace secrecy. And behind these practices, we will continue our reign of terror.

Oh, and by the way, for the social patriots among my readers, AG Mukasey can't even say whether waterboarding a U.S. citizen is illegal, i.e., it's open season on everybody now. (See the exchange between Mukasey and Senator Leahy here.)

Loopholes and Judicial Chicanery

If you want to fight torture, you better get a law degree. Because the battle against these inhuman practices, in a Kafkaesque irony meant to lull one's putative victims to sleep, is reduced to legislative formulae and (endlessly) interpretable legalese. It starts by dividing torture into something called "torture" and something called "CID" (cruel, inhuman and degrading behavior). Then there are varying definitions: international, by treaty, Constitutional, by judicial precedent, etc.

"Shocks the conscience" is a criteria used to judge the existence of "CID" under U.S. law. In the UN Convention Against Torture (ratified by the U.S. in the 1990s), the U.S. listed an unprecedented number of "reservations" to the treaty, explaining under what conditions it would ratify. (The language was the creation of the Reagan administration, but left unchanged by Clinton, and subsequently written into much subsequent legislation, including the Military Commissions Act.

One of the principle "reservations" to the UN CAN was a redefinition of CID as something to be interpreted under U.S. law. For those who aren't savvy, that means using "shock the conscience" precedents in U.S. courts, rather than more stringent international standards. For the U.S., it meant greater freedom of action by executive agencies in planning and executing coercive interrogations.

Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.... In United States law which describes whether or not the due process requirement of the Fifth Amendment to the United States Constitution has been met. This term originally entered into case law with the decision for Rochin v. California (1953). This balancing test is often cited as having subsequently been used in a particularly subjective manner.

Mike Otterman explains how this dubious criteria has been used to weaken the standards by which a government cannot engage in torture or cruel, inhuman, degrading treatment of a prisoner. First, he quotes Assistant Attorney General William Moschella:

With respect to treatment of detainees by the United States Government... the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.”

The last clause is where the entire issue lies. If the behavior is therefore justified by any governmental interest, it's (grave pause) legal. And guess who decided that? Well, Dick Cheney for one (from Otterman's piece):

If it's something that shocks the conscience, the court has agreed that crosses over the line.

Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder. But I believe, and we think it's important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it's important for us to be able to have effective interrogation of these people when we capture them.

A Lawless Land
There is no more law in America. We have now only rule by an executive. The rest is pettifogging obfuscation to preoccupy the suckers, those not lucky enough, by birth, or by having morals enough not to steal great wealth, to occupy the tall towers of the power elite.

A Congress that cannot deal with such basic issues of human rights and decency is not only politically bankrupt, it is a serious menace to democracy and freedom. Because in their impotence and blustering, they are bringing the very idea of legislative representation and rule by elected represenatives into disrepute. This does not go unregistered abroad. Nor are the enemies of freedom at home unaware, and they are sharpening their long knives, for the final vivisection of the republic.

All must join -- left, right, Democratic, Republican, the disaffected and the politically astute -- and call for the ouster of this hated man, Michael B. Mukasey. That he is also carrying administration water for obstruction of justice on the U.S. attorneys investigation, and for immunity on FISA, only establishes a trifecta of lawlessness that must be addressed now.

The rot is spreading. The election is months away, but the damage is being done now.

Impeach Mukasey, Bush and Cheney!

Conyers Raps New AG on CIA Tapes Investigation

Before everybody praises Michael "Is Waterboarding Torture?" Mukasey, Bush's new Attorney General, for appointing U.S. Prosecutor John Durham as head of a Justice Department criminal investigation into the CIA videotape destruction scandal, consider these succinct comments from an old Washington hand, Congressman John Conyers (remarks in bold are my emphases):

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied –- as they were in the Valerie Plame matter –- any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

So Durham is supposed to have cornered the mob, and have jailed some Connecticut pols... This is starting to smell like the Fitzgerald prosecution, with its Dudley Do-Right prosecutor, the limited scope of investigation, and likely many months before anything ever comes out about the destruction of evidence and obstruction of justice.

I agree with Congressman Conyers that a special prosecutor is needed in this case. But Rep. Conyers... really... wouldn't impeachment be a more direct way to "restore our credibility and moral standing on these issues"? And who could do more about that than... YOU!

Keith Olberman on Mukasey, Daniel Levin & Waterboarding

Read this. Watch the video.

"Waterboarding is torture," Daniel Levin was to write. Daniel Levin was no theorist and no protester. He was no troublemaking politician. He was no table-pounding commentator. Daniel Levin was an astonishingly patriotic American and a brave man.

Brave not just with words or with stances, even in a dark time when that kind of bravery can usually be scared or bought off.

Charged, as you heard in the story from ABC News last Friday, with assessing the relative legality of the various nightmares in the Pandora's box that is the Orwell-worthy euphemism "Enhanced Interrogation," Mr. Levin decided that the simplest, and the most honest, way to evaluate them ... was to have them enacted upon himself.

Daniel Levin took himself to a military base and let himself be waterboarded....

MSNBC commentator goes on to call on Democratic Senators Feinstein and Schumer to recant their support for Bush lackey appointee, Michael Mukasey.

Thus Michael Mukasey, on the eve of the vote that will make him the high priest of the law of this land, cannot and must not answer a question, nor even hint that he has thought about a question, which merely concerns the theoretical definition of waterboarding as torture.

Because, Mr. Bush, in the seven years of your nightmare presidency, this whole string of events has been transformed.

From its beginning as the most neglectful protection ever of the lives and safety of the American people ... into the most efficient and cynical exploitation of tragedy for political gain in this country's history ... and, then, to the giddying prospect that you could do what the military fanatics did in Japan in the 1930s and remake a nation into a fascist state so efficient and so self-sustaining that the fascism would be nearly invisible.

But at last this frightful plan is ending with an unexpected crash, the shocking reality that no matter how thoroughly you might try to extinguish them, Mr. Bush, how thoroughly you tried to brand disagreement as disloyalty, Mr. Bush, there are still people like Daniel Levin who believe in the United States of America as true freedom, where we are better, not because of schemes and wars, but because of dreams and morals.

And ultimately these men, these patriots, will defeat you and they will return this country to its righteous standards, and to its rightful owners, the people.

Intelligence Agents Call for Hold on Mukasey Nomination

Larry Johnson over at Daily Kos has released a letter to the chairman and ranking minority member of the Senate Judiciary Committee, calling for a hold on Mukasey's nomination for Attorney General until Judge Mukasey clarifies his position on waterboarding. They ridicule Mukasey's claim of ignorance on the subject, and suggest a classified briefing for him and other Committee leaders, which would be taped in order to "enhance the likelihood of candor". Johnson is a former Intelligence analysis and operations officer, and was deputy director of Office of Counter Terrorism at the U.S. State Department.

The letter follows the news last Friday that Democratic Senators Feinstein and Schumer said they would vote to recommend Mukasey out of committee. The memorandum from assorted former intelligence operatives from the CIA/FBI/DIA and State Department is full of lofty calls for a return to American values and a return to the "high moral ground" supposedly held previously by the U.S. military and CIA. One only has to contemplate the history of the CIA, of how the U.S. government has trained torturers around the world, of the U.S. unprovoked invasions of Iraq and Vietnam with deaths in the millions, of the torture-assassination program that was Operation Phoenix, in addition to the fact the agents's memorandum says nothing about other forms of torture, or about the CIA extraordinary rendition program, to recognize the bogus nature of such previously held moral values and positions.

The letter itself is worth publishing as an example of the rebellion within the governmental bureaucracy against the hard-line Bush/Cheney cabal, for whom anything goes. You can bet that these former government spooks wouldn't have published if there wasn't some support for their position within the active military and intelligence community.

The memorandum also demonstrates that political opposition to the Mukasey nomination hasn't totally crumbled in the wake of Feinstein and Schumer's genuflection to Bush. Johnson says this letter can be posted "at any blog or site, in full", asking only for attribution to No Quarter. What follows is the full text of this letter to the Judiciary Committee:

MEMORANDUM FOR: Chairman and Ranking Member Senate Committee on the Judiciary

FROM: Former U.S. Intelligence Officers

SUBJECT: Nomination of Michael Mukasey for Attorney General

Dear Senators Leahy and Specter,

Values that are extremely important to us as former intelligence officers are at stake in your committee’s confirmation deliberations on Judge Michael Mukasey. With hundreds of years of service in sensitive national security activities behind us, we are deeply concerned that your committee may move his nomination to the full Senate without insisting that Mukasey declare himself on whether he believes the practice of waterboarding is legal.

We feel this more acutely than most others, for in our careers we have frequently had to navigate the delicate balance between morality and expediency, all the while doing our best to abide by the values the vast majority of Americans hold in common. We therefore believe we have a particular moral obligation to speak out. We can say it no better than four retired judge advocates general (two admirals and two generals) who wrote you over the weekend, saying: “Waterboarding is inhumane, it is torture, and it is illegal.”

Judge Mukasey’s refusal to comment on waterboarding, on grounds that it would be “irresponsible” to provide “an uninformed legal opinion based on hypothetical facts and circumstances,” raises serious questions. There is nothing hypothetical or secret about the fact that waterboarding was used by U.S. intelligence officers as an interrogation technique before the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004. But after Alberto Gonzales became attorney general in February 2005, Justice reportedly issued a secret memo authorizing harsh physical and psychological tactics, including waterboarding, which were approved for use in combination. A presidential executive order of July 20, 2007 authorized “enhanced interrogation techniques” that had been banned for use by the U.S. Army. Although the White House announced that the order provides “clear rules” to govern treatment of detainees, the rules are classified, so defense attorneys, judges, juries — and even nominee Mukasey — can be prevented from viewing them.

Those are some of the “facts and circumstances.” They are not hypothetical; and there are simple ways for Judge Mukasey to become informed, which we propose below.

Last Thursday, President George W. Bush told reporters it was unfair to ask Mukasey about interrogation techniques about which he had not been briefed.

“He doesn’t know whether we use that technique [waterboarding] or not,” the president said. Judge Mukasey wrote much the same in his October 30 letter, explaining that he was unable to give an opinion on the legality of waterboarding because he doesn't know whether it is being used: “I have not been made aware of the details of any interrogation program to the extent that any such program may be classified and thus do not know what techniques may be involved in any such program.” Whether or not the practice is currently in use by U.S. intelligence, it should in fact be easy for him to respond. All he need do is find out what waterboarding is and then decide whether he considers it legal.

The conundrum created to justify the nominee’s silence on this key issue is a synthetic one. It is within your power to resolve it readily. If Mukasey continues to drag his feet, you need only to facilitate a classified briefing for him on waterboarding and the C.I.A. interrogation program. He will then be able to render an informed legal opinion. We strongly suggest that you sit in on any such briefing and that you invite the chairman and the ranking member of the Senate Select Committee on Intelligence to take part as well. Receiving the same briefing at the same time (and, ideally, having it taped) should enhance the likelihood of candor and make it possible for all to be — and to stay — on the same page on this delicate issue.

If the White House refuses to allow such a briefing, your committee must, in our opinion, put a hold on Mukasey’s nomination. We are aware that the president warned last week that it will be either Mukasey as our attorney general or no one. So be it. It is time to stand up for what is right and require from the Executive the information necessary for the Senate to function responsibly and effectively. It would seem essential not to approve a nominee who has already made clear he is reluctant to ask questions of the White House. How can a person with that attitude even be proposed to be our chief law enforcement officer?

We strongly urge that you not send Mukasey’s nomination to the full Senate before he makes clear his view on waterboarding. Otherwise, there is considerable risk of continued use of the officially sanctioned torture techniques that have corrupted our intelligence services, knocked our military off the high moral ground, severely damaged our country’s standing in the world, and exposed U.S. military and intelligence people to similar treatment when captured or kidnapped. One would think that Judge Mukasey would want to be briefed on these secret interrogation techniques and to clarify where he stands.

The most likely explanation for Mukasey’s reticence is his concern that, should his conscience require him to condemn waterboarding, this could cause extreme embarrassment and even legal jeopardy for senior officials this time not just for the so-called “bad apples” at the bottom of the barrel. We believe it very important that the Senate not acquiesce in his silence—and certainly not if, as seems the case, he is more concerned about protecting senior officials than he is in enforcing the law and the Constitution.

It is important to get beyond shadowboxing on this key issue. In our view, condoning Mukasey’s evasiveness would mean ignoring fundamental American values and the Senate’s constitutional prerogative of advice and consent.

At stake in your committee and this nomination are questions of legality, morality, and our country’s values. And these are our primary concerns as well. As professional intelligence officers, however, we must point to a supreme irony—namely, that waterboarding and other harsh interrogation practices are ineffective tools for eliciting reliable information. Our own experience dovetails well with that of U.S. Army intelligence chief, Maj. Gen. John Kimmons, who told a Pentagon press conference on September 6, 2006: “No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.”

Speaking out so precisely and unequivocally took uncommon courage, because Kimmons knew that just across the Potomac President Bush would be taking quite a different line at a press conference scheduled to begin as soon as Kimmons finished his. At the White House press conference focusing on interrogation techniques, the president touted the success that the C.I.A. was having in extracting information from detainees by using an “alternative set of procedures.” He said these procedures had to be “tough,” in order to deal with particularly recalcitrant detainees who “had received training on how to resist interrogation” and had “stopped talking.”

The Undersigned
(Official duties refer to former government work.)

Brent Cavan
Intelligence Analyst, Directorate of Intelligence, CIA

Ray Close
Directorate of Operations, CIA for 26 years—22 of them overseas; former Chief of Station, Saudi Arabia

Ed Costello
Counter-espionage, FBI

Michael Dennehy
Supervisory Special Agent for 32 years, FBI; U.S. Marine Corps for three years

Rosemary Dew
Supervisory Special Agent, Counterterrorism, FBI

Philip Giraldi
Operations officer and counter-terrorist specialist, Directorate of Operations, CIA

Michael Grimaldi
Intelligence Analyst, Directorate of Intelligence, CIA; Federal law enforcement officer

Mel Goodman
Division Chief, Directorate of Intelligence, CIA; Professor, National Defense University; Senior Fellow, Center for International Policy

Larry Johnson
Intelligence analysis and operations officer, CIA; Deputy Director, Office of Counter Terrorism, Department of State

Richard Kovar
Executive Assistant to the Deputy Director for Intelligence, CIA: Editor, Studies In Intelligence

Charlotte Lang
Supervisory Special Agent, FBI

W. Patrick Lang
U.S. Army Colonel, Special Forces, Vietnam; Professor, U.S. Military Academy, West Point; Defense Intelligence Officer for Middle East, Defense Intelligence Agency (DIA); founding director, Defense HUMINT Service

Lynne Larkin
Operations Officer, Directorate of Operations, CIA; counterintelligence; coordination among intelligence and crime prevention agencies; CIA policy coordination staff ensuring adherence to law in operations

Steve Lee
Intelligence Analyst for terrorism, Directorate of Intelligence, CIA

Jon S. Lipsky
Supervisory Special Agent, FBI

David MacMichael
Senior Estimates Officer, National Intelligence Council, CIA; History professor; Veteran, U.S. Marines (Korea)

Tom Maertens
Foreign Service Officer and Intelligence Analyst, Department of State; Deputy Coordinator for Counter-terrorism, Department of State; National Security Council (NSC) Director for Non-Proliferation

James Marcinkowski
Operations Officer, Directorate of Operations, CIA by way of U.S. Navy

Mary McCarthy
National Intelligence Officer for Warning; Senior Director for Intelligence Programs, National Security Council

Ray McGovern
Intelligence Analyst, Directorate of Intelligence, CIA; morning briefer, The President’s Daily Brief; chair of National Intelligence Estimates; Co-founder, Veteran Intelligence Professionals for Sanity (VIPS)

Sam Provance
U.S. Army Intelligence Analyst, Germany and Iraq (Abu Ghraib); Whistleblower

Coleen Rowley
Special Agent and attorney, FBI; Whistleblower on the negligence that facilitated the attacks of 9/11.

Joseph Wilson
Foreign Service Officer, U.S. Ambassador and Director of Africa, National Security Council.

Valerie Plame Wilson
Operations Officer, Directorate of Operations

Will Feinstein and Schumer Be Prosecuted for War Crimes?

Before I get to the Feinstein/Schumer imbroglio, let me first introduce Stephen Grey, the well-known author of Ghost Plane: The True Story of the CIA Rendition and Torture Program (read an excerpt at the link), and a reporter for Frontline's upcoming November 9 documentary, Extraordinary Rendition, on PBS. He has a new piece over at Salon.com that's worth reading, "The Extraordinary Truth about CIA Renditions".

Grey points out that as terrible as waterboarding and other forms of torture practiced by the CIA and their foreign partners are, there are some things that are even more terrible. Anyone who has read my articles on sensory deprivation and DDD-style torture will recognize the subject as addressed in Grey's Salon piece.

In the course of investigating the rendition program for the past four years, I have interviewed victims, CIA pilots, case officers who have actually carried out renditions, senior CIA officers who directed such operations and officials at the White House who were involved in authorizing such measures. All of these sources told me in private or on the record that repeated claims by the White House that we "don't send people to countries where they will be tortured" are plain lies....

Inside its own "black site" prisons, the CIA uses interrogation methods that -- while falling short of the medieval techniques used in the Arab world -- still, in the eyes of many within the agency, amount to straightforward torture. It is not only the physical methods like waterboarding (simulated drowning), but also refined techniques of sensory deprivation, that can cripple a prisoner psychologically.

One witness to such abuse was Bisher al-Rawi, a longtime British resident who was snatched by the CIA and held for more than four years, first in Afghanistan, then in Guantánamo Bay, Cuba. In a recent interview he told me about the "dark prison" where he was held in solitary confinement while being bombarded with strange music. It was freezing cold and so dark, he said, "you couldn't see the end of your nose." Physical torture, like the beatings he later endured, could be overcome, he said, but psychological torture "lives with you all your life."

The biggest news, of course, in the ongoing U.S. torture scandal is the capitulation of Senators Dianne Feinstein (D-CA) and Chuck Schumer (D-NY), members of the Senate Judiciary Committee, who announced at the end of last week that they would vote to recommend Bushite right-wing hack, Federal Judge Michael B. Mukasey, to the Senate for confirmation vote as the Attorney General nominee to replace the unlamented Alberto Gonzales. Feinstein has already famously pronounced her rationale for her vote: "Judge Mukasey is not Alberto R. Gonzales." Furthermore, she described Mukasey's replies to the committee's questions to be "crisp and to the point". Mukasey told her that waterboarding (an abhorrent torture technique with roots in medieval torture), with Feinstein quoting Mukasey here, seems

"...over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans....

"I do know... that waterboarding cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (DTA). That is because waterboarding and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation"....

Feinstein appears to want to compound her betrayal by rewriting history as well. Does the typical American's memory really only last a couple of weeks? Here's our "crisp" and "to the point" AJ nominee answering the questions of Senator Whitehouse, as reported in the New York Times (though the link is to my previous posting on Mukasey, cleverly enabling you to review my past writings on this issue):

"Is waterboarding constitutional?” he was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today’s sharpest exchanges.

"I don’t know what is involved in the technique,” Mr. Mukasey replied. “If waterboarding is torture, torture is not constitutional.”

Mr. Whitehouse described Mr. Mukasey’s response as a “massive hedge”....

“It either is or it isn’t,” the senator continued. “Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?”

Mr. Mukasey repeated his answer: “If it amounts to torture, it is not constitutional.”

Mr. Whitehouse said he was “very disappointed in that answer — I think it is purely semantic.”

“I’m sorry,” Mr. Mukasey replied.

I guess Mukasey learned a lot about waterboarding after his encounter with Sen. Whitehorse. But Feinstein and Schumer have certainly learned nothing. Perhaps they are unaware that keeping the threat of waterboarding alive enhances fear in prisoners currently held by the CIA, and that such induction of fear is itself a form of torture. Could Feinstein and Schumer be prosecuted themselves someday as accessories to war crimes? It may not be out of the question. But then, I doubt anyone on their staff mentioned that to these quintessential cowards and sell-outs. (It goes without saying that Bush Administration officials deserve such prosecution.)

Here's some of the relevant law:

Torture or inhuman treatment of prisoners-of-war (Geneva III, arts. 17 & 87) or protected persons (Geneva IV, art. 32) are grave breaches of the Geneva Conventions, and are considered war crimes (Geneva III, art. 130; Geneva IV, art. 147). War crimes create an obligation on any state to prosecute the alleged perpetrators or turn them over to another state for prosecution. This obligation applies regardless of the nationality of the perpetrator, the nationality of the victim or the place where the act of torture or inhuman treatment was committed (Geneva III, art.129; Geneva IV, art. 146).

During the Vietnam War, anti-war protesters used to shout, "Hey hey, LBJ, how many kids did you kill today?" Will anti-war and anti-torture protesters soon be yelling at Lady DiFi, "Hey DiFi, Di Fi, how many will be waterboarded because of your lie?"

Vote Down Michael "Is Waterboarding Torture?" Mukasey

The New York Times continues to cover the Senate confirmation hearings for Bush Attorney General nominee Michael B. Mukasey. As the general consensus built for a Mukasey confirmation, doubts have crept in through the cracks, as it became obvious Mukasey was as adept at parsing his language regarding torture as former Justice Department head, the despised Alberto Gonzales.

This came out more clearly today, when Mukasey told a dubious Senate panel that he didn't even know what waterboarding, a well-publicized CIA torture technique, was. Really. Would I make this stuff up?

"Is waterboarding constitutional?” he was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today’s sharpest exchanges.

"I don’t know what is involved in the technique,” Mr. Mukasey replied. “If waterboarding is torture, torture is not constitutional.”

Mr. Whitehouse described Mr. Mukasey’s response as a “massive hedge”....

“It either is or it isn’t,” the senator continued. “Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?”

Mr. Mukasey repeated his answer: “If it amounts to torture, it is not constitutional.”

Mr. Whitehouse said he was “very disappointed in that answer — I think it is purely semantic.”

“I’m sorry,” Mr. Mukasey replied. [Bold emphases are added]

So he's sorry. Tell that to the torture victims who must suffer the anxiety and intrusive memories of being forcibly drowned, but unlike a truly drowned man, live to feel the panic and terror day by day for the rest of their lives.

Of course Mukasey's response on the CIA's "enhanced" interrogation techniques, of which waterboarding is one of the most notorious, is totally disingenuous, as the issue has been highlighted by the mainstream press for years now. Here's an ABC News expose from November 2005:

Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

"The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law," said John Sifton of Human Rights Watch.

Now many say that Mukasey would be independent of the Bush administration, but let's compare his response on the waterboarding question with that of his putative new boss, George W. Bush (as taken from Fox's Bill O'Reilly show, and reported by Dan Froomkin of the Washingon Post exactly one year ago today):

O'Reilly: "Is waterboarding torture?"

Bush: "I don't want to talk about techniques. But I do assure the American people that we were within the law and we don't torture. I have said all along to the American people we won't torture. But we need to be in a position where we can interrogate these people"....

O'Reilly: " But if the public doesn't know what torture is or is not, as defined by the Bush Administration, how can the public make a decision on whether your policy is right or wrong?" [Froomkin's emphasis.]

Bush's ducking of such an important question, it seems to me, is highly newsworthy. Here's the president's response, in its entirety:

Bush: "Well, one thing is that you can rest assured we are not going to talk about the techniques we use in a public forum, no matter how hard you try, because I don't want the enemy to be able to adjust their tactics if we capture them on the battlefield.

Hell, even Bill O'Reilly knows what waterboarding is! And this waterboarding question is indicative of Mukasey's inability or unwillingness to be straightforward on other substantive issues, not least on the crucial wiretapping controversy.

Michael Ratner from Center for Constitutional Rights appeared on Democracy Now! this morning and had this to say about Mukasey and the whole nomination process:

Mukasey is someone who basically isn’t willing to take on the torture program, Guantanamo, electronic surveillance, enemy combatants, all these issues that have been the core of the US going off the page of fundamental rights. He is sadly off the page with the administration.

And the real question, to me, of this whole charade, which is what I have to call that hearing, is the fact that the Democrats are willing to confirm him and basically lay down and let issues like enemy combatants, torture, electronic surveillance, simply be continued by the next attorney-general. So it’s really -- when I watched the hearings yesterday, to me it was one of the saddest days I’ve seen in that Congress. And the only thing I could think of was the sign that Dante wanted in front of the gates of Hell, which is “Abandon all hope, ye who enter here.” [Emphasis added]

Okay, then. Supposedly this blog wants to elect Democrats. But the Democrats are dropping the ball on the most important questions of human rights and civil liberties (and let's not even get into the Iraq War question). Therefore, it is imperative that WE pick up the ball and not let these issues wither on the congressional vine.

Call for a NO vote for the nominee who doesn't know what waterboarding is. If he's that ignorant and out of touch anyway, we don't want him heading the Justice Department. The problem is he's not ignorant, he's dissembling. Out with him. Call your Senators and urge a NO vote on Mukasey.

Has Everyone Drunk the Kool-Aid? New AG Nominee Is Right-Wing Nut

So Federal Judge Michael B. Mukasey said he was against torture in his confirmation hearing, and the liberals are ready to fall all over him. His confirmation as Bush's new attorney general is presumably a given. Never mind that he refused to comment on the secret 2005 Bush Administration memorandums authorizing harsh, "enhanced" interrogation techniques by the CIA. Listen to Mukasey get all huffy at his nomination hearing today:

When Senator Charles E. Schumer, a New York Democrat, suggested in his questioning that the 2005 opinions might authorize torture, Mr. Mukasey stopped him. “You characterize it as torture,” he said. “I do not know of such a policy and I hope not to find them.”

Nor would he comment in detail on the legality of the so-called warrantless wiretap program that was authorized by President Bush shortly after the terror attacks of Sept. 11, 2001, and has been harshly criticized by civil liberties groups and lawmakers from both parties as possibly unconstitutional.

“I am not familiar with that program,” said Mr. Mukasey, who knew enough about the program to refer to it as the Terrorist Surveillance Program, the name preferred by the White House.

Why, even Glenn Greenwald has nice things to say about this best-of-a-bad-bunch rightwinger, because Mukasey bucked the Administration by allowing accused "dirty bomb" plotter and U.S. torture victim, Jose Padilla, the right to talk with his attorneys, or to challenge the evidence against him. Never mind that Mukasey upheld the indefinite detention of "enemy combatants" like Padilla. Never mind that Mukasey wants to initiate an entire new "national security court" for Bush's "war on terror", explaining that "conventional legal rules" are not "adapted to deal with a terrorist threat". Of course, Greenwald allows, "Judge Mukasey's respect for the Constitution and the rule of law should not be overstated."

Now that's an understatement.

Mukasey is an adviser (along with his white-collar criminal defense attorney son) to arch-militarist and scary GOP presidential candidate Rudy Guiliani. He wrote a paean to the Patriot Act in the Wall Street Journal, where he red-baited the American Library Association, and then threw out this sinister challenge to the primacy of the Bill of Rights:

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt.

So, conventional opinion says Mukasey is a good guy, better than Gonzales, someone who will not politicize the Justice Department, is against torture, and also independent from the Bush circle -- hell, even Chuck Schumer likes the guy (he even suggested Mukasey to Bush as a possible Supreme Court nominee a while back). But if there ever was a poster boy for the degradation of political discourse and sensibility, and the failure of two-party politics in the age of American adventurism and imperial hubris abroad, it's Michael B. Mukasey.

A little dose of cynicism might cure an overdose of the Kool-Aid, which has the media snoring, and even leftie liberals prattling over business-as-usual in this dangerously oblivious land.