The latest demonstration of Senate Majority Leader Harry Reid’s feckless leadership was the 53-40 kabuki vote late on November 8th to confirm Michael B. Mukasey as Attorney General. Mukasey had refused to regard the abusive technique called waterboarding to be torture and therefore a prosecutable criminal act. Mukasey understands whom he is supposed to shield.
Democrats quickly announced the intention to introduce legislation outlawing waterboarding. But why? As Evan Wallach pointed out in The Washington Post on November 4th, numerous legal precedents prove that waterboarding already is illegal and prosecutable.
Are Democrats, having caved on Mukasey’s confirmation, now about to make yet another strategic blunder by proceeeding with this legislation?
WARNING NOTICE: Reflecting on this question and exploring the links below may lead to severe loss of equanimity and cause political activism or emigration to a still-civilized country.
Master of Torture: Spanish Grand Inquisitor Torquemada (1420-1498) (Image from Amazon.com)
Remorseless Acolyte: U.S. Vice President for Torture Cheney (1941- ) (AP Photo)
DEMOCRATIC LEADERSHIP CAVING DESPITE LAWS AGAINST TORTURE
By letting the nomination of Michael B. Mukasey as Attorney General out of committee to go to the floor of the Senate, Senators Charles Schumer and Dianne Feinstein demonstrated inexplicable deference to a Bush Administration desperately seeking to avoid criminal prosecutions for violations of well-established international law and U.S. statutes prohibiting the use of torture.
Congress has already granted immunity from prosecution for certain war crimes retroactive to 1997 by amending the War Crimes Act through provisions of the Military Commissions Act of 2006 (go ahead a read Chapter VII of this abomination). After the vote to confirm Mukasey, Senators Biden and Kennedy and Representatives Nadler and Delahunt quickly proposed to make waterboarding and certain other specific kinds of cruel or inhuman treatment illegal.
Reality to Congress: such treatment has long been illegal, and its treatment under law and precedent provides no credible rationale for Mukasey’s evasive answers during his confirmation hearings. The relevant international agreements and U.S. statutes are: the Fourth Geneva Convention of 1949; the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 1987 (ratified in 1994); the U.S. Anti-torture Statute (Title 18, Part 1, Chapter 113C), and the War Crimes Act of 1996 (Title 18, Chapter 18, Section 2441).
Evan Wallach has written a meticulously documented history of waterboarding and its treatment as torture under the law: Drop by Drop. Former Navy SEAL Malcolm Nance makes the same argument based on his personal experience. Republican Senator John McCain, who knows firsthand a thing or two about torture, states without qualification that waterboarding is torture and a violation of law.
Surely the Bush Administration apparatchiks who have promoted the use of torture, as did Deputy Assistant Atorney General John Yoo in his famous torture memo and as did David Addington as Vice President Cheney’s General Counsel, can be prosecuted on conspiracy charges. Here is the “conspiracy” element under Chapter 113C of Title 18 (the Anti-Torture Statute):
A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Here is how the War Crimes Act addresses penalties for violations:
Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
The many Bush Administration memos justifying torture had to be sent to “the top” for approval, so there is ample, irrefutable documentary evidence that Attorney General Alberto Gonzales, Vice President Richard Cheney, and President George W. Bush were directly involved in conspiring to approve what any civilized nation would consider to be torture. Then National Security Adviser Condoleezza Rice was surely in the decision loop as well. As Secretary of State, Rice’s comments on torture have been classically Goebbelsian, while the State Department’s top legal adviser, John Bellinger, recently refused to rule out the use of waterboarding, even by foreign governments on U.S. citizens. Those who elaborated the guidance and passed the orders to subordinates for implementation, i.e., Secretary of Defense Donald Rumsfeld, former DCI George Tenet, and current DCI Michael Hayden, are in the same chain of criminal conspiracy.
What would be the practical net effect of the kinds of legislation proposed by Democrats in the House and Senate to declare waterboarding to be illegal? Would not such legislation, even if it were not vetoed by Bush, implicitly provide retroactive immunity to those who have until now ordered and conducted the waterboarding or other specific mistreatment of detainees–despite the numerous legal precedents in which the U.S. has prosecuted such actions as a war crimes, as in The United States v. Sawada or as a criminal violation of domestic statutes, as with the conviction of Texas Sheriff James Parker and his deputies in 1983?
OFFICIALLY SANCTIONED TORTURE AND ABUSE: THEORY, REALITY, AND PUSH-BACK
The question of whether waterboarding is torture is not a hard one for any reasonable person to answer. Authoritarian neocons obviously have a different view and will end up stammering an evasive response, as did Mukasey at his hearings in before the Senate Juciary Committee. But reasonable people, such as former Acting Assistant Attorney General Daniel Levin, who himself underwent waterboarding in order to judge for himself, call torture for what it is. Needless to say, for his candor and integrity, Levin was quickly forced out of the Bush Administration’s Department of Justice.
The approved “enhanced interrogation techniques” for the Department of Defense (DoD) include cold cells, chaining to the ceiling or floor, sleep deprivation (an old favorite of the Soviet KGB), and prolonged “stress positions.” For a chilling official account of abusive techniques employed with approval by Secretary of Defense Donald Rumsfeld, see this unintentionally revealing investigative whitewash conducted by the U.S. military on itself regarding FBI charges of prisoner abuse at Guantanamo. Note the cavalier, dismissive tone adopted by the U.S. military in rejecting most of the accusations by FBI officers. Note also that the Rumsfeld-approved techniques for DoD interrogators, as well as the term “enhanced interrogation” (Verschärfte Vernehmungare) are virtually identical to those used by the German Gestapo in World War II.
Another torture technique favored by the military is extreme sensory deprivation as inflicted on U.S. citizen Joseph Padilla. Here is the horrific photo of Padilla wearing blackout goggles and soundproof earmuffs.
Here is a report on six approved “enhanced interrogation techniques” for use by CIA interrogators. The techniques include prolonged stress positions, sleep deprivation, and waterboarding.
Being beaten with a sledgehammer handle and then suffocated to death, as was Afghan Maj. Gen. Abed Hamed Mowhoush at the hands of CIA and U.S. Military Intelligence interrogators in 2003, is more than merely torture, it is homicide. In the case involving the killing of Maj. Gen. Mowhoush, the U.S. Army interrogator, Chief Warrant Officer Lewis Welshofer, was brought to trial and escaped with a modest fine and light reprimand. He was allowed to remain in the Army and retain his eligibility for promotion.
Col. Lawrence Wilkerson, who was Secretary of State Colin Powell’s chief of staff, noted in an interview with BBC in November, 2005 that he was aware of the deaths of 70 detainees under “questionable” circumstances while he was still in office (i.e., until January, 2005), and that former colleagues had told him that the number had since risen to 90 questionable deaths. The ACLU has compiled a listing of some such incidents. What is the total number now at the end of 2007? And how many deaths of abused detainees have been covered up and reported as resulting from “natural causes” in order to avoid any investigative follow-up?
Citing historical and legal precedents and clear potential exposure to legal culpability, many honorable military lawyers in the Judge Advocate General’s Corps wrote closely reasoned and impassioned memos objecting to the proposed abusive detention and interrogation techniques.
John Helgerson, the CIA Inspector General, concluded in a report in 2004 that some C.I.A.-approved interrogation procedures “…appeared to constitute cruel, inhuman and degrading treatment, as defined by the international Convention Against Torture.” At least one senior CIA official resigned in protest of the procedures, but DCI Michael Hayden’s response has been to proceed with the torture, while launching an investigation in an apparent effort to intimidate Helgerson into submission. It is worth noting that the “review” of Helgerson’s IG activities is being conducted by DCI Hayden’s “Senior Counselor,” Robert L. Deitz. It turns out that Deitz was General Counsel at NSA when Hayden was the Director of NSA. In other words, Deitz was the NSA lawyer who crafted (or at least submitted over his signature to Gen. Hayden) the internal NSA legal opinions to justify the Bush/Cheney Administration’s massive program of warrantless wiretapping, e-mail siphoning, collection of proprietary data, and data-mining in an apparent vacuuming of data of foreigners and Americans alike. (Both DCI Hayden and his assistant Deitz may ultimately need to set up legal defense funds. They may be able to get some names of potential corporate and contractor donors from the CIA’s former third-ranking officer, Kyle “Dusty” Foggo, who is currently under indictment not for war crimes or crimes against humanity, but for simple bribery and corruption.)
The incidents of detainee abuse and torture are not isolated acts of “bad actors.” They represent a top-down, comprehensively conceived pattern of officially sanctioned criminal activity.
But our nation’s new top law enforcement official, Attorney General Michael B. Mukasey, clearly has been selected and instructed to look the other way. The White House clearly expects Mukasey to avoid prosecuting those responsible for these crimes. Will the new Attorney General follow the White House’s instructions?
CAN TORTURE BE RELIED UPON TO PRODUCE ACCURATE INTELLIGENCE?
The bottom line, as is well known by any truly professional interrogator, is that torture more often than not extracts bogus, unreliable information, whether from Torquemada’s accused heretics, Salem’s accused witches, or Guantanamo’s accused “enemy combatants.” To stop the immediate pain, the victim will say whatever he thinks his torturer wishes to hear. The torturer typically is not a substantive expert or even a moderately skilled questioner. He typically has little skill at separating potentially significant facts from fantasies and fabrications born out of fear and desperation. Too often, the torture becomes an end in itself, nothing more than a cruel diversion conducted to demonstrate dominance and to humiliate the prisoner. The editorial page of The Wall Street Journal may approve of waterboarding and tout the efficacy of Nazi torture technques, but then what else can one really expect from Rupert Murdoch’s most recently acquired vehicle for corporatist and authoritarian agitprop?
The whole debate about the ethics and efficacy of torture compels us to reflect on the disastrous politicization of U.S. intelligence. In a rationally functioning policy universe, a national leadership would wish its judgments and actions to be informed by objective facts and detached analysis. The neocon ideologues have stood this empirical, scientific approach on its head in their delusional drive to make their own reality. Intelligence is sought to support goals that have been predetermined, often in an intellectual vacuum chamber devoid of on-the-ground reality. The leadership directs its massive intelligence apparatus to search for information to support policy. If the intelligence professionals fail to come up with the requested information, they are given the same set of questions and asked to try harder. The flimsiest scraps of raw, unverified intelligence are then cherry-picked to to reinforce the original ideological dogma.
Cheney’s pressure generates many rotten intelligence cherries to be picked, whatever the the reality in the field may be. Will waterboarding and other forms of torture and detainee abuse produce the requisite rotten cherries on Iran? There is no real incentive in the system for intelligence collectors and analysts to report negatives. The rewards and promotions come from spectacular, sensational reporting, as in the intelligence fiasco over Iraq’s purchase of aluminum tubes, allegedly intended for centrifuges to enrich uranium. Under the Bush/Cheney Administration, even when the intelligence collectors make the right call, as on the fabrications of the taxi driver “Curveball” regarding Iraqi mobile BW labs, top level officials such as the eager-to-please DCI George Tenet generally have served the wishes of their bosses rather than serve the truth.
Sometimes the obvious incentives to produce what is sought from above will result in the detention and torturing of perfectly innocent individuals. As a result of egregious official blundering, German citizen Khaled El-Masri and Canadian citizen Maher Arar are but two examples of such blundering.
When a leader makes it known that he will accept only one “right answer” to a question, then that is the answer that will inevitably find its way through his surrounding phalanx of deferential nods and obsequious smiles. The monstrosity produced by this process inevitably turns out to be something like Colin Powell’s infamous speech before the UN Security Council on February 6th, 2003. For an object lesson in how ideologues seek to deceive and disinform their audience, one can still view that entire dog and pony show, complete with hoked-up photos of alleged WMD storage sites and imagined drawings based on tales fabricated by Curveball. Multiple, credible reports have revealed that Vice President Cheney was the behind-the-curtains wizard staging that intelligence farce.
Cheney and his neocon chorus, having gotten their way on Iraq, have long since turned the focus of their intelligence “requirements” to Iran. For over a year Cheney has been pressing the intelligence community to produce a National Intelligence Estimate (NIE) on Iran to support his desire to make the case for invading Iran. It appears that the professionals have not yet completely caved in to Cheney’s pressure. Here is a recent chilling report regarding how such pressure is transmitted to interrogators of detainees in Iraq to find links between Iran and the ongoing violence in Iraq. And if such pressure is not enough to skew the results, the military noncoms or CIA-hired rent-a-thug contractors and former noncoms doing the actual torturing and interrogating rarely have the language skills, the cultural awareness, or the substantive knowledge to manage truly effective questioning of foreign detainees or of volunteers and peddlers of intelligence.
PLAYING “KEEP-AWAY” WITH THE DOCUMENTS AND “GIMME” FOR THE STAY OUT OF JAIL CARD
New Attorney General Mukasey was selected by the White House because he is a neocon operative. Bush and Cheney surely do not expect him to prosecute war crimes or crimes against humanity committed by anyone in the “unitary executive,” least of all, themselves. Mukasey may lack the manifest authoritarian malevolence of Bush, Cheney, the pathologically mendacious former U.S. Ambassador to the UN John R. Bolton, or the notoriously vicious and inept former Undersecretary of Defense for Policy Douglas Feith. All the same, wiithin the Bush Administration’s authoritarian crime family, Mukasey will almost surely be another stonewalling Alberto Gonzales, but with one key distinction: Mukasey will be an intelligent and effective executor at the Department of Justice–not a hapless bumbler like Gonzales. He will likely operate in the coolly efficient, bland, ostensibly inoffensive manner of White House Counsel Fred Fielding or of DNI Mike McConnell: unresponsive without being utterly obnoxious.
Mukasey is the Bush Administration’s “closer,” inserted in the bottom of the ninth inning to shut down the opposing team. He will most likely follow his manager’s instructions to defy Congressional oversight requests for key documents and e-mails and to ignore Congressional subpeonas. His job is to make sure that if the Democrats swing, they will miss. It may be an easy job, for the Democratic leadership seems to be intent on “taking all the way” and hoping for a free base on balls instead of swinging to drive in runs. Sometimes it seems as though the Democratic leadership is simply waiting passively for executive power to fall in its lap.
Mukasey is one of the neocon true-believing team; he is just smoother around the edges than many others. Yet under his hard-right, authoritarian intellectual shell, Mukasey does seem to harbor a residual personal decency and some respect for the law and Constitution. He may not always click his heels and salute when issued a command by Cheney or Bush, as Glenn Greenwald noted in an analysis of Mukasey’s independent streak in presiding over the early stages of the Joseph Padilla case.
ENDGAME–WHY NOT A STRATEGY TO SERVE LEGITIMATE JUSTICE?
It is hard to understand why the current Democratic leadership fails to use its considerable potential leverage to insist on the appointment of a Special Prosecutor to investigate the culpability of Bush Administration officials, including those at the highest levels, for war crimes and crimes against humanity under U.S. statutes and international law. (The Administration’s violations and evasions of FISA, various privacy laws, and Fourth Amendment protections also seem to cry out for a Special Investigator. Chirp. Chirp.)
If all else fails, what would happen if a Democrat possessing a sense of justice and accountability were to win the election in November, 2008 and walk into the Oval Office in January, 2009? Would it not be an excellent gesture to the rest of the world if a few dozen of these utterly remorseless Bush Administration neocon nutzis were prosecuted for the manifest crimes that they committed while in office? The U.S. would immediately be welcomed back to the community of civilized nations. (We need to keep in mind that such an outcome is not a sure thing. An authoritarian Republican like Rudi Giuliani–or even a potentially authoritarian Democrat–could conceivably win the Presidential election in 2008).
And if Mukasey as Attorney General perpetuates the current Bush Administration guidance sanctioning the use of “enhanced interrogation techniques,” including waterboarding, will he not open himself to eventual prosecution for criminal conspiracy and perhaps obstruction of justice?
An especially effective gesture might for the next U.S. administration to join the International Criminal Court (ICC) (which has jurisdiction to prosecute war crimes and crimes against humanity) and offer a few of the top criminals, perhaps at least Vice President Cheney, former Secretary of Defense Rumsfeld, former Attorney General Gonzales, former DCI George Tenet, current DCI Michael Hayden, and Secretary of State Condoleezza Rice to the ICC for prosecution for war crimes under ample international precedents.
Other possible venues for eventual justice may be the courts of still-civilized nations. Note, for example, former Secretary of Defense Donald Rumsfeld’s rapid departure from France in late October when informed that French human rights organizations had lodged a criminal complaint against him for his issuance of instructions on torture in three memos issued in 2002 and 2003.
It would probably be prudent for all of the Bush Administration officials who have been involved in approving and implementing torture to arrange legal counsel and begin setting up legal defense funds, which of course will be fully funded by their corporatist benefactors, especially by Big Oil, Big Guns, and Big Wartime Contractors. Still, it is hard to see how even the most able of defense attorneys will be able to refute the ample and unambiguously self-incriminating documentary evidence that the authoritarian neocon ideologues of the Bush/Cheney Administration have strewn in their wake.
As for the retinue of apparatchiks, such as John Yoo, who wrote the memos supporting torture and then DCI George Tenet (and now DCI Michael Hayden), who implemented the torture policies, surely some of them would merit prosecution for their cowardice and criminal acts. At the very least. should not the trustees, the State of California, and major donors to the University of California at Berkeley, put pressure on the university to dismiss torture advocate John Yoo from his current faculty post? Should not the trustees and major contributors to Georgetown University do the same to press for the dismissal of George Tenet from his teaching position there? Do these universities really wish to harbor proponents and executors of torture? Do the other faculty members really want proponents and executors of torture in their midst? Do the trustees and donors of Stanford University really approve of Donald Rumsfeld’s presence at the Hoover Institute for the next year?
Surely some of the low level hands-on torturers, whether military noncoms or CIA contractors, should be made examples through prosecution. The Adolph Eichmann argument about “just following orders” should not be allowed to stand. And various categories of enablers, notably the doctors who helped monitor and calibrate the precise levels of pain and suffering inflicted on individual detainees, should face at least the loss of their professional licenses, if not prosecution for complicity in war crimes.
Would not most sensible approach to ensure halting the torture, beginning to restore America’s favorable international image so sullied and virtually obliterated by the Bush Administration, and preparing the political battlefield for 2008 and 2009 require the Democrats to refrain from proposing legislation to outlaw waterboarding and other forms of prisoner abuse already illegal under international and U.S. law? Passing legislation to declare illegal that which is already illegal would leave Bush with a no-lose situation. He could veto the measure and assert that waterboarding is therefore “still legal.” He could attach one of his utterly unconstitutional negating “signing statements.” Or he could even sign the legislation, stop the torture of detainees (or, more likely, come up with new and innovative methods of abuse not specifically enumerated, described, and prohibited in the new legislation), and then claim that he and his minions had been given a “get out of jail free card” for past actions.
Would it not make more sense to mount a steady hue and cry that the U.S. should not be conducting torture, for it is both illegal and ineffective, while at the same time using Congressional oversight to pry loose documentation and testimony which can ultimately help bolster prosecutions of the conpirators and torturers? Along with the hue and cry, the Democratic leadership could issue clear warnings to U.S. military and government personnel that torture and prisoner abuse are clear violations of law that will be prosecuted if the Democrats take power. Such an approach would concentrate the minds of many heel-clickers, active and potential, on “doing the right thing.” And surely Congress can work to encourage and protect whistle-blowers who wish to provide testimony and additional documentary evidence on the Bush Administration’s torture program.
The already available testimony, photographs, and documentary evidence of officially-sanctioned U.S. prisoner abuse demonstrate that there is far more to the story than a few low-level “bad actors.” The torture conducted at Abu Ghraib in Iraq, Bagram in Afghanistan, Guantanamo in Cuba, or the CIA’s network of secret prisons and collaborating rendition destinations, such as Syria, Egypt, and Morocco, reflects approval and coordination at the highest levels of the U.S. government, including the White House itself.
Actions that the U.S. has prosecuted as war crimes when committed by German Nazis or by the Japanese military in World War II are advocated by neocon theorists as necessary tools in the Global War on Terror.
What should be obvious to anyone who gives even cursory thought to the issue is that the Bush Administration has perpetrated a comprehensive conspiracy to ignore and violate U.S. and international law in order to torture detainees. It is a textbook case of a government run amok in violation of its own founding principles.
The evidence contained in the above hyperlinks leads to an inescapable irony to ponder: the fabricated, flimsy intelligence case concocted under the relentless direction of Vice President Cheney and his staff to justify the invasion and occupation of Iraq was far, far less of a compelling “slam dunk” (to borrow professional courtier George Tenet’s term) than is the existing massive body of evidence to try and convict Cheney–and dozens of other Bush Administration officials–for war crimes and violations of existing U.S. statutes. Yet this massive evidence lies fallow–ignored and unused by Department of Justice prosecutors.
Is it remotely possible that new AG Mukasey may surprise us and pursue the evidence to wherever it may lead? At his confirmation hearings Mukasey seemed to distance himself slightly from the Cheney/Addington/Yoo neocon party line on the absolute authority of the “unitary executive” to ignore any law it chooses. Is there any chance that Mukasey could turn out to follow the example of Elliot Richardson, who put country and Constitution above deference to a criminally corrupt White House during the denouement of the Watergate scandal? Probably not, but it is thoughts like this one–that from somewhere leadership will emerge to end this national and international nightmare–that help us get through the days and nights. It seems more likely, though, that Mukasey will protect his bosses, perhaps by throwing up an occasional diversionary investigation to project the appearance of independence and thereby help run out the clock.
Will the Democratic leadership simply cave on this critically important issue and look the other way, as it has by keeping impeachment “off the table,” despite a whole series of criminal activities by the Bush Administration?
Will we witness from the Democratic leadership a continuing litany of “feckless is as feckless does?” Or will Democrats finally, perhaps by changing their leadership, find a coherent voice and adopt a decisive endgame? As chess grandmaster Savielly Tartakower said of his sport: “The mistakes are there, waiting to be made.” Another grandmaster, David Bronstein, pointed out: “The post powerful weapon in chess is to have the next move.” It often seems as though the current Democratic leadership is so afraid to make a mistake that it timidly refrains from making a decisive forcing move against an increasingly discredited and weakened White House.
Former Congresswoman and House Judiciary Committee member Elizabeth Holtzman perfectly describes the box in which the Bush Administration has nailed itself: Mukasey’s evasive non-answer to the question on the legality of waterboarding was carefully calculated, for “…publicly admitting waterboarding is torture or cruel and inhuman would have put the President in jeopardy of criminal charges.” Holtzman adds that the War Crimes Act and the Anti-torture Statute:
…carry the death penalty in cases where victim dies. In such cases there is no statute of limitations, so the President could be subject to prosecution for the rest of his life.
The same exposure to potential prosecution will also exist for dozens of neocon apparatchiks and heel-clicking underlings.
So many obvious crimes; so many remorseless criminals; so relatively little time.