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

Also posted at Invictus and Never In Our Names

10 comments

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    • Valtin on November 5, 2007 at 8:50 pm
      Author

    But interested readers may want to pursue another article I wrote today, with the provocative title, Will Feinstein and Schumer Be Prosecuted for War Crimes?

    Didn’t want to spam this site, and I thought reposting the LJ letter more important, but from that other essay:

    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?”

  1. Leahy’s office and asked that my Senator, Diane Feinstein (who neither understands nor values the Constitution), be given a copy of the letter by Johnson and 24 other Inelligence officers.  And to give it to Schumer also.

    His aide seemed surprised and happy to receive the call of support.

    Thanks for the post, Valtin

  2. Are there “blog awards” for which I can nominate you?  I so appreciate your diligence on these issues.  Yet the last thing I expected to hear from you was good news… that people within the agencies insist on raising the bar.

    Take heart always, and thank you.

    • Tigana on November 6, 2007 at 1:24 am

    Read descriptions and verbatim accounts of waterboarding to their staff and, after hours, to their answering machines.

    • fatdave on November 6, 2007 at 5:45 am

    when you posted Valtin – very well done btw. Important stuff I think. I thought somebody might have FP’d it.

  3. of The New York Times and reprint this diary

    well done doesn’t do it justice

  4. reprinted/cross posted – perhaps any of us that have sway with other sites should cross post to as many as possible. Where else would you recommend?

    • Edger on November 7, 2007 at 1:12 am

    Slate
    All Wet: Why can’t we renounce waterboarding once and for all?

    What is it about waterboarding that makes the White House so reluctant to renounce it? It’s an old torture technique from the Spanish Inquisition that consists of immobilizing your target on an inclined board, head down, with cloth covering their face. Pouring water over the face simulates drowning. The practice leaves no physical marks. It’s illegal under the Geneva Conventions and has long been treated as a war crime by the United States. We even use this technique to train our own troops to withstand illegal torture by our enemies. As retired Rear Adm. John D. Hutson, a former top Navy lawyer and now dean of Franklin Pierce Law Center in Concord, N.H., testified at Mukasey’s hearing last week, “Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It has been repudiated for centuries. It’s a little bit disconcerting to hear now that we’re not quite sure where waterboarding fits in the scheme of things.”

    For starters, Bush won’t renounce waterboarding because it violates the two choice cocktails of anyone drunk on executive authority: Absolut secrecy and Absolut power.

    First, secrecy. It has long been the view of the Bush administration that nothing can be deemed illegal so long as it remains a secret. Never mind that it’s a secret only to people living in igloos without wireless service. That’s why, even while there’s a major movie out about rendition, we call it a secret. Since they have yet to make a movie called Waterboard, Mukasey could take the absurd position that he isn’t sure precisely what it involves. Cute trick. Call it a secret, and there can be no legal debate. As the White House insisted Friday, “Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified.” If the soon-to-be-AG cannot hazard an opinion on the legality of waterboarding, even when he can read step-by-step accounts of it on the Internet, who are the rest of us to condemn it?

    The problem with this argument is that the administration’s use of waterboarding on detainees has been known publicly since at least May 2004. Everybody knows what it involves, and even if you live in an igloo without wireless, you can tell it’s illegal. The argument that you can’t call it torture until you’ve been “read into” the torture program is just a lawyer’s trick that justifies keeping bad conduct secret to end-run the laws.

    Next, there is the absolute authority argument. The real reason the Bush administration clings to its power to order waterboarding has little to do with any strategic argument and everything to do with the old standby assertion that to renounce his authority to waterboard would be to give away the president’s power.

    This Is What Waterboarding Looks Like

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