Water(boarding)gate continues

Senator Richard Durbin (IL), who sits on the Senate Judiciary Committee, sent a letter to Attorney General Michael Mukasey yesterday demanding, among other things, that he open an investigation into the CIA’s use of waterboarding on three detainees, after CIA Chief Michael Hayden had publicly confirmed the use of this torture method to Congress on the same day.

Senator Durbin’s letter can be found with his press release here and also reproduced in full below. The letter is so good, it needs no commentary.

—

February 5, 2008

The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Attorney General Mukasey:

I will object to proceeding with the nomination of Judge Mark Filip to be Deputy Attorney General until you respond to my inquiries regarding the Administration’s torture policies and practices. In light of the Justice Department’s continued non-responsiveness to Congress on the issue of torture, including your disappointing testimony on waterboarding last week, I have reluctantly concluded that placing a hold on Judge Filip’s nomination is my only recourse for eliciting timely and complete responses to important questions on torture.

Some suggested that your confirmation was an opportunity to turn a new page after Attorney General Gonzales’s troubled tenure, but your failure to take a position on waterboarding raises questions about whether your leadership will bring significant changes to the Justice Department. Your silence does tremendous damage to America’s values and image in the world and places Americans at risk of being subjected to waterboarding by enemy forces. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners.

Last week, you testified that waterboarding is not currently authorized by the Administration but you refused to comment on whether waterboarding has been authorized in the past or will be authorized in the future. In other words, your assurance that the Administration does not use waterboarding was good for the day you testified and no longer.

Today Central Intelligence Agency Director Michael Hayden testified to the Senate Select Intelligence Committee that, “Waterboarding has been used on only three detainees.” In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated. You suggested during last week’s hearing that you would not investigate these incidents because waterboarding was authorized by the Administration: “It’s a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations.” Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law. Please respond to this question: Will the Justice Department investigate the Administration’s use of waterboarding to determine whether any laws were violated?

While the United States has considered waterboarding to be a war crime for decades, last week you testified that it is unclear whether waterboarding is illegal because it is not explicitly prohibited by the Military Commissions Act and the Detainee Treatment Act. While I disagree with your analysis of the MCA and the DTA, you did not address whether waterboarding is prohibited by Common Article 3 of the Geneva Conventions, which you have acknowledged applies to all detainees in U.S. custody. Common Article 3 states that “outrages upon personal dignity, in particular humiliating and degrading treatment” are absolutely prohibited. The Judge Advocates General, the highest-ranking attorneys in each of the four military services, told me unequivocally that waterboarding and several other abusive interrogation techniques are illegal and violate Common Article 3. On August 2, 2007, I sent then Attorney General Alberto Gonzales the attached letter asking him, among other things whether it would be legal for enemy forces to subject an American citizen to these same techniques. Please respond to this letter.

During last week’s hearing, you repeatedly referenced the Justice Department’s prosecution of CIA contractor David Pasarro as evidence that the Department would not permit detainee abuses. However, you neglected to mention that, following the indictment of Mr. Passaro by the U.S. Attorney’s Office for the Eastern District of North Carolina, then Attorney General John Ashcroft assigned all pending detainee abuse cases to the U.S. Attorney’s Office for the Eastern District of Virginia on June 17, 2004. It has been over three and a half years since then and in that time there has not been a single indictment. On January 10, 2008, I sent you the attached letter requesting an update on the Justice Department’s handling of detainee abuse allegations. Please respond to this letter.

During last week’s hearing, you refused to comment on the scope of the Justice Department’s investigation of the CIA’s destruction of detainee interrogation videos. We have now learned that there may be video or audio recordings of detainees whom the CIA transferred to other countries to be interrogated. According to the Chicago Tribune, in February 2003 the CIA detained a man named Abu Omar in Italy. The CIA then took Abu Omar to Egypt and turned him over to the Egyptian government. Abu Omar claims he was tortured and that his Egyptian interrogators recorded “the sounds of my torture and my cries.” On December 12, 2007, I sent you a letter asking you to expand the Justice Department’s inquiry into the CIA’s torture tapes to cover recordings of detainees whom the CIA rendered to foreign countries. Please respond to this letter.

During last week’s hearing, we discussed the nomination of Steven Bradbury to be the head of the Justice Department’s Office of Legal Counsel. I have repeatedly urged President Bush to withdraw this nomination because of Mr. Bradbury’s involvement in authorizing some of the Administration’s most controversial policies, including torture techniques that are inconsistent with American values and law and warrantless surveillance of innocent Americans.

Prior to your confirmation, you pledged to me in writing that you would personally review all OLC opinions regarding surveillance, interrogation techniques and detention standards to determine whether each of these opinions can be provided to Congress and to determine whether the legal analyses and conclusions of each of these opinions are correct. However, at last week’s hearing, you acknowledged that you had not reviewed all of these opinions, including an opinion, reportedly authored by Mr. Bradbury, on so-called “combined effects,” which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The New York Times, then Attorney General Alberto Gonzales approved this opinion over the objections of then Deputy Attorney General James Comey, who said the Justice Department would be “ashamed” if the memo became public. As you committed prior to your confirmation, please review all OLC opinions regarding surveillance, interrogation techniques and detention standards and notify me whether each of these opinions can be provided to Congress and whether you believe the legal analyses and conclusions of each of these opinions are correct.

Mr. Bradbury is currently the Principal Deputy Assistant Attorney General of OLC. There is no Acting Assistant Attorney General, so Mr. Bradbury is the effective head of OLC. During last week’s hearing, you acknowledged that Mr. Bradbury is the “principal person” in OLC. Under the Vacancies Reform Act, after a nomination is returned to the President a second time, the nominee may continue to serve as acting head of the office for only 210 days. Mr. Bradbury was first nominated in June 2005 and his nomination was returned to the President for the second time on September 29, 2006, well over a year ago. The fact that Mr. Bradbury continues to serve as the effective head of OLC appears to be an attempt to circumvent the confirmation process in order to install a controversial nominee in a key Justice Department post. Please respond to the following question: Does Steven Bradbury’s continued service as the “principal person” in OLC violate the Vacancies Reform Act?

In sum, I will object to proceeding with the nomination of Mark Filip to be Deputy Attorney General until I receive responses to the following:

1. Will the Justice Department investigate the Administration’s use of waterboarding to determine whether any laws were violated?
2. My letter, dated August 2, 2007, asking then Attorney General Alberto Gonzales whether it would be legal for enemy forces to subject an American citizen to waterboarding and other abusive interrogation techniques.
3. My letter, dated January 10, 2008, asking you for an update on the Justice Department’s handling of detainee abuse allegations.
4. My letter, dated December 12, 2007, asking you to expand the Justice Department’s inquiry into the CIA’s torture tapes to cover recordings of detainees whom the CIA rendered to foreign countries.
5. Will you provide Congress with all OLC opinions regarding surveillance, interrogation techniques and detention standards? Do you believe the legal analyses and conclusions of each of these opinions are correct?
6. Does Steven Bradbury’s continued service as the “principal person” in OLC violate the Vacancies Reform Act?

You testified that, “The continued wait for Senate-confirmed officials creates a tentative atmosphere that is not in the interest of the Department or of the country.” That well describes the situation created by your refusal to condemn waterboarding and answer other important questions on torture. I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress. I look forward to your timely response.

Thank you for your time and consideration.

Sincerely,
Richard J. Durbin

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.

• See a list of House Judiciary Committee members here.

• Find out your complete postal code here.
  

• Find out who is your Congressperson here.

On February 5, 2003, exactly five years ago tomorrow, Secretary of State Colin Powell gave his speech to the Security Council presenting “evidence” designed to persuade the world of the need to make war on Iraq.[i] Prior to Powell’s speech, a curious event took place at United Nations headquarters. Acting on a decision from higher authorities, U.N. workers covered up a tapestry of Pablo Picasso’s famous anti-war work, Guernica, which normally hangs at the entrance to the Security Council, where press conferences take place.[ii]

Picasso’s Guernica, a painting depicting the aerial bombing of a Spanish village in 1937, is perhaps the world’s best known artistic symbol of the horrors of war. Indeed, the tapestry reproduction was placed at the Security Council’s door to serve as a reminder of those horrors. One can thus imagine why Powell might not have wanted the Picasso as his backdrop when advocating for a war that was to begin with “shock and awe” in Baghdad. But regardless of whether it was censured at the behest of the U.S. or shrouded for the far-fetched aesthetic reasons cited by U.N. officials, the hiding of Guernica was a profound mistake. Then, as now, the world desperately needed the artwork’s cautionary message.

On that fateful Guernica-less day five years ago, Powell confidently claimed to the world that Saddam Hussein had trained Al-Qaeda in the use of chemical and biological weapons of mass destruction.[iii] We now know he largely based this claim on a confession by a man named Ibn al-Libi, a confession obtained after al-Libi was rendered by the U.S. to Egypt and tortured. Al-Libi has since recanted. Why did he say that Iraq had trained Al-Qaeda in W.M.D. in the first place? The C.I.A. seems to think he said it because it got the torture to stop. Precisely one year after Powell’s speech, a C.I.A. cable lent credence to al-Libi’s account that the Egyptians essentially buried him alive for some 17 hours as part of his “enhanced interrogation” plan.[iv]

Picasso would have warned us of all this shameful business, for in Guernica lay a two-fold principle: war is hell and torture is wrong. At a time when the Bush administration assured the public that its soldiers would be greeted with flowers[v] and that the “operation” was for Iraqi freedom[vi], missing was Picasso’s ominous reminder in Guernica that there is no such thing as an easy war. No one can dispute this now after over half a million Iraqi civilian casualties, according to a John Hopkins University study[vii], and nearly 4,000 U.S. military deaths.[viii]

But while Guernica has always been famous as an anti-war icon, it is little known as an anti-torture one. Indeed, Picasso’s masterpiece has always undermined a legal linchpin of the Bush administration’s torture program. Since the beginning of its detainee policy, the administration’s legal arguments have rested on a key unilateral determination that the Geneva Conventions did not apply as a matter of right to whomever the government deemed to be an “unlawful combatant.”[ix] In 2006, the Supreme Court pronounced that determination to be wrong. In particular, it held that detainees captured in armed conflict with the U.S. were entitled to at least the protections of Common Article 3 of the Geneva Conventions.[x] Common Article 3, which bans torture and outrages upon personal dignity among other things[xi], has long been widely regarded as the humanitarian minimum in armed conflict.[xii] So why did the Bush administration’s lawyers need the Supreme Court to tell them to abide by Common Article 3?

Because they ignored Guernica. The government’s position was that Common Article 3 applied only to conflicts within a country’s territory, not to transnational struggles like the “war on terror.” The provision, they argued, was drafted with civil wars in mind, in particular the Spanish Civil War.[xiii] It turns out that the delegates in Geneva sixty years ago would have known perfectly well that while the Spanish Civil War was called Spanish, it was actually transnational. Several foreign powers intervened in the Spanish Civil War on different sides of the conflict.[xiv] Perhaps the most infamous transnational involvement in the Spanish Civil War occurred on April 26, 1937, when Germany and Italy sent planes to firebomb the Spanish town of Guernica, killing hundreds of civilians and terrorizing the rest.[xv] Nearly 70 years later, came news of a different transnational horror; photographs of U.S. soldiers celebrating the torture of naked hooded beaten Iraqi prisoners at Abu Ghraib were broadcast around the world.[xvi] Leading U.S. interrogation officials in Iraq had been drawn from the war in Afghanistan, where they had been instructed from above that their detainees were generally not, as a formal matter, ultimately entitled to the protections of the Geneva Conventions, even those contained in Common Article 3.[xvii]

Five years after the Guernica cover up at the U.N., the war in Iraq languishes on, the U.S. still refuses to effectively prohibit torture[xviii], and the Department of Justice continues to act to shield high level officials responsible for authorizing abuses.[xix] Picasso could have predicted these results. Covering up past atrocity lies on the path to future atrocity. The ugliness and distortions hidden beneath the baby blue U.N. drapes five years ago were inevitably to reveal themselves in the shameful, vivid and permanent images of today’s reality.

But though truth comes out eventually in different ways, the world cannot afford another literal or metaphorical Guernica cover up. This Super Tuesday, ask which candidate knows this recent piece of art history. The next U.S. president must have the Picasso principle emblazoned in his or her mind: war is hell and torture is wrong

[i] http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html

[ii] http://www.slate.com/id/2078242/; http://query.nytimes.com/gst/fullpage.html?res=9F02E2DB1F38F936A35751C0A9659C8B63; http://www.commondreams.org/headlines03/0203-13.htm; http://www.commondreams.org/views03/0209-04.htm

[iii] http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html (POWELL: “Al Qaida continues to have a deep interest in acquiring weapons of mass destruction…I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to Al Qaida. Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it… The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two Al Qaida associates beginning in December 2000… As I said at the outset, none of this should come as a surprise to any of us.”).

[iv] http://www.intelligence.senate.gov/phaseiiaccuracy.pdf p. 79-82; http://blogs.abcnews.com/theblotter/2007/11/cia-rendition-t.html

[v] http://www.nytimes.com/2005/03/17/opinion/17thu2.html?st=cse&sq=wolfowitz+flowers&scp=1

[vi] http://seattlepi.nwsource.com/national/113497_opname21.shtml

[vii] http://www.nytimes.com/2006/10/11/world/middleeast/11casualties.html?scp=3&sq=600%2C000+lancet&st=nyt; see also http://www.iraqbodycount.org/

[viii] http://icasualties.org/oif/

[ix] See, e.g. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf

[x] See http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

[xi] http://www.icrc.org/ihl.nsf/0/e160550475c4b133c12563cd0051aa66?OpenDocument

[xii] http://www.icrc.org/ihl.nsf/COM/375-590006?OpenDocument

[xiii] http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf; http://www.cartoonbank.com/newyorker/slideshows/05YooTaft.pdf

[xiv] http://hamdanvrumsfeld.com/GoodmanJinksSlaughter-FINALHamdamAmicusBrief-Jan52006.pdf, p. 19-22.

[xv] http://www.independent.co.uk/news/europe/guernica-remembered-picassos-legacy-446249.html; http://www.time.com/time/magazine/article/0,9171,918912-1,00.html; http://www.mayorsforpeace.org/english/speech/Gernika.html

[xvi] http://www.cbsnews.com/stories/2004/04/27/60II/main614063.shtml

[xvii] http://query.nytimes.com/gst/fullpage.html?res=9F04EFD7113FF932A15756C0A9629C8B63&sec=&spon=&pagewanted=1; http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf; http://www.nytimes.com/2005/03/11/politics/11abuse.html?scp=1&sq=miller+abu+ghraib+rumsfeld+gitmo-ize&st=nyt; http://www.washingtonpost.com/wp-dyn/content/article/2005/07/27/AR2005072702083.html

[xviii] See, e.g. http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html; http://www.fas.org/irp/cia/product/dcia090707.html; http://www.nytimes.com/2007/12/07/washington/07interrogate.html?ref=world (“A White House spokesman, Tony Fratto, denounced the measure [to limit C.I.A. interrogation methods those listed in the Army Field Manual] and said it would face a presidential veto if it passes.”).

[xix] http://www.tpmmuckraker.com/2008/01/whitehouse_to_mukasey_why_not.php; http://www.harpers.org/archive/2008/01/hbc-90002285