Stop Torture

CORRECTED: The transcript of the White House press briefing is out now. Assuming that transcript to be correct, White House spokesperson Tony Fratto stated that Department of Justice (DOJ) lawyers approved waterboarding, but not necessarily, as the Associated Press had reported, that “waterboarding’s use in the past was also approved by the attorney general.” Regardless of whether John Ashcroft himself approved the torture (and he may well have since important opinions of the Office of Legal Council should get reviewed by the Attorney General), DOJ lawyers apparently did, making them potentially liable for torture and war crimes.

Fratto made this admission about the DOJ lawyers as part of the White House’s recent push to publicly defend waterboarding as both legal and justified. However, in doing so, Fratto has confirmed that the administration’s defense of the CIA’s use of torture is based upon the fact that the waterboarding was approved at the highest levels (maybe the president signed off on it too?). As Senator Sheldon Whitehouse (RI) noted when questioning Attorney General Michael Mukasey last week, this amounts to nothing more than the Nuremberg defense (i.e. claiming that what one did was not illegal simply because one was ordered to do it). The Nuremberg defense was rejected at the time of the Nazi trials. In U.S. and international law, no one is required to follow an unlawful order. On the contrary, an unlawful order must be resisted.

Yesterday, CIA chief Michael Hayden told Congress in an open session that three detainees had been waterboarded by his agency. Human Rights Watch’s terrorism and counterterrorism director, Joanne Mariner, described Hayden’s testimony as “an explicit admission of criminal activity” and called for an investigation. Senator Richard Durbin (IL) has also called for an investigation. As argued in a previous post, Congress must push for a special prosecutor if it wants the investigation conducted seriously, since Mukasey has demonstrated his lack of will and ability to take on the issue of torture responsibly.

UPDATE: Amnesty International is now also calling for a full, independent, and prompt criminal investigation.

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