CIA chief Michael Hayden testified before Congress today that the CIA waterboarded three detainees. The CIA’s first official public acknowledgment that three detainees were waterboarded indisputably triggers the need for an investigation and prosecution for the commission and for the authorization of torture and war crimes. Waterboarding is torture, and the United States has prosecuted waterboarding as a war crime for over a century.

Unfortunately, Attorney General Michael Mukasey’s testimony before Senator Sheldon Whitehouse confirms he cannot be trusted to start or oversee such an investigation. There is good reason to believe that the Department of Justice (DOJ) under Mukasey has secretly already decided that waterboarding is not per se torture, as law professor and former DOJ Office of Legal Counsel (OLC) attorney Marty Lederman points out (see Scott Horton agreeing with Marty Lederman). And given that Stephen Bradbury–who authored the memo giving a green light to subjecting detainees to waterboarding coupled with “head slapping” and “frigid temperatures” (i.e. hypothermic conditions)–is still in charge of the OLC, and that Mukasey has said “Steven Bradbury is one of the finest lawyers I’ve ever met,” there can be no real hope of the current DOJ determining waterboarding to have been a war crime either. Though Mukasey promised to review the legality of the Bradbury torture memos after his confirmation as Attorney General, he recently admitted to not having reviewed the opinions when question by Senator Richard Durbin on January 30, 2008. It all smells of torture and cover up, right on the five year anniversary of one of the most infamous cover ups of our time.

Congress should appoint a special prosecutor without delay. To do anything less is to condone torture and war crimes done in their name.

UPDATE: Ask your representative on the House Judiciary Committee to press Attorney General Mukasey to support the appointment of a special prosecutor to investigate the CIA’s admitted waterboarding of three detainees. The Committee will hold an oversight hearing with Mukasey this Thursday, February 7, 2008 at 10A.M. For Massachussetts, all those in the 10th District, contact Representative Bill Delahunt. For New York, all those in the 8th District (much of Manhattan and Brooklyn), contact Representative Jerrold Nadler, and all those in the 9th District (much of Brooklyn and Queens), contact Representative Anthony Weiner.

Many other states are represented on the House Judiciary Committee.

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