Stop Torture

Senators Schumer and Feinstein both think we can do no better than Mukasey under Bush. A resigned Feinstein declared, “Judge Mukasey is the best nominee we are going to get from this administration.” There is no justification for the Senate setting its expectations so low. A senator should evaluate a nominee on his or her merits, not on who the president might or might not send next. Besides, and most importantly, Schumer and Feinstein missed the big picture.

Here is why Mukasey’s nomination presents the biggest chance in years to stop the U.S. torture program:

The risk of criminal liability is the only thing that has put the brakes on the U.S. torture program to any serious degree. After the Supreme Court applied Geneva Common Article 3 protections to the “war on terrorism” detainees in Hamdan (June 2006), the resulting risk of war crimes liability for violators of Geneva (see War Crimes Act) single-handedly did what nothing previously had been able to do: it shut down the CIA secret prisons. Nervous CIA interrogators, fearing prosecution, refused to go on with the program. Unfortunately, the shutdown lasted less than a month, however, because Congress unforgivably caved during election season in September 2006, and rewarded President Bush with the Military Commissions Act of 2006, a rather remarkable response to Bush’s then recent public acknowledgement that the U.S. had been disappearing detainees into secret prisons and torturing them. (Acknowledged with somewhat less accurate vocabulary). The Military Commissions Act of 2006, with its decriminalization of non-grave breaches of the Geneva Conventions (quite possibly the functional equivalent of an illegal amnesty, but that’s for another post) and its allotment of interpretive authority of Geneva to the president, made the Bush administration and the CIA personnel feel secure enough to reopen their secret prisons.

Throughout the episode, fear of criminal prosecution, or lack thereof, was the key. Jack Goldsmith, former head of the OLC, discusses in The Terror Presidency how Addington, Gonzales, and others have always been obsessed with the possibility of facing criminal prosecutions for torture. So much so, that Rumsfeld would talk about the need to combat “lawfare,” a term he took from the writings on universal jurisdiction of Air Force Brigadier General Charles Dunlap. If there’s been one reliable anti-torture motivator in the Bush administration, it’s been the criminal law. Proverbial flows of potential criminal liability have been accompanied by ebbs of the U.S. torture program.

Fastfoward to Mukasey. The frontpage New York Times story from November 1, 2007, marked the start of the first major public discussion of the Bush administration’s potential criminal liability for torture since Hamdan. This because the post-Hamdan discussion was flawed, the mainstream media buying into the administration’s spin, in which it raised the specter of Democratic witch-hunts of “well-meaning” CIA interrogators, who had but laid a gentle finger upon detainees. The Bush administration used this specter to railroad the Military Commissions Act through Congress, and then to interpret it how they saw fit.

But Congress shouldn’t have fallen for the act. Politically, no U.S. prosecutor would go after the CIA unless real cases were involved. If those cases arise, then they deserve to be investigated. Either way, as commentators like Prof. Jack Balkin have noted, the CIA agents then as now may have a defense under U.S. law to prosecution since they seem to have ostensibly relied on official readings of the law (OLC opinions) for their actions. A note of caution to would-be CIA torturers, however: as Jack Goldsmith points out in his book, that reliance must be reasonable, and reliance on clearly flawed opinions would not count, and some of the torture memos might meet this standard. Also, under international law, such a defense would almost definitely not be admitted anyway, so universal jurisdiction cases would still threaten.

Regardless, this story has always really been about the criminals in the White House rather than those in the CIA Salt Pits of Afghanistan or elsewhere. Both are guilty of torture, but it is the former that are now scrambling to cover their behinds in the Mukasey debate. Why? Because the Mukasey debate is different than the Hamdan one. This time, the story has spun out of the Bush administration’s control. Waterboarding is the issue, and it is so clearly torture, and torture is criminal, and conspiracy to commit torture is criminal (as Senator Cardin told Mukasey), and everybody knows these days that Bush and Co. ordered it nonetheless.

If there were ten votes (Democratic or otherwise) against Mukasey in Committee, not only would that block the nomination, it would demonstrate that Congress is serious about calling the CIA’s methods criminal. Faced with a “no” vote, Bush would have to either recess appoint Mukasey or subject another person to a confirmation proceeding, in which they would certainly be asked the same questions on waterboarding, war crimes, and the like (i.e. the Bush nightmare: the creation of an anti-torture litmus test). Any new nominee would either have to accept that the Bush administration is seemingly liable for conspiracy to commit torture, or face the Senate’s big “no.” Democracy at work! Checks and balances! Fancy that.

The message sent to federal prosecutors, the administration, and the public would be loud and clear: there will be no more torture without accountability. This would an immediate chilling effect on U.S. torturers everywhere, even if investigations and prosecutions never panned out.

The waterboarding question has temporarily put the Democrats in a position to checkmate the administration on torture. Without an attorney general to rubber stamp their torture program—or with only a de-legitimated recess-appointed one—the Bush administration would have had to move to Plan C: mass presidential torture pardons when shamefully bowing out of office. (Don’t rule that out, by the way. In fact, expect no less).

Had Schumer and Feinstein stood strong, perhaps the CIA would have gotten the jitters again à la Hamdan, and the secret prisons might have closed once more. But alas, Schumer and Feinstein not only lack principle, apparently they lack tactical thinking. Never throw away a checkmate that stares you in the face.

The loss entailed by Schumer’s and Feinstein’s decisions is much greater than that of a mere augmentation of torture apology in the echo chamber of the national security discourse. The Mukasey confirmation was the best chance that has come up in years stop the U.S. torture policy. Perhaps today, as the torture survivors who are planning to attend the confirmations look on, Schumer and Feinstein will have the courage, and the brains, to change their minds and vote to stop torture.

One thing is for certain: they may think Mukasey is the best they will get, but Schumer and Feinstein are not the best we will get. We will demand more, and we will work to boycott their fundraising efforts and remember to vote them out of office at the next opportunity. In the meantime, they should be ashamed, and they should be shamed. The demonstration outside Congress today and the protest gathered outside Schumer’s New York City office in silent vigil to deliver written testimonies of waterboarding survivors to his staffers show that we will not let them forget their complicity.

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CURRENT TALLY

• In Favor of Moral & Legal Ambiguity on Torture
  • Schumer (NY)
  • Feinstein (CA)

• Opposed to Mukasey and Torture
  • Whitehouse (RI)
  • Biden (DE)
  • Durbin (IL)
  • Kennedy (MA)
  • Leahy (VT)
  • Feingold (WI)
  • Cardin (MD)
  • Kohl (WI)

Note: Since the Senate Judiciary Republicans are all expected to vote for Mukasey, even the ones who theoretically are against torture (e.g. Specter and Graham), we count here only Senate Judiciary Democrats, the members of that oh so disappointing party.

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