On December 10, 2007, International Human Rights Day, the 59th anniversary of the Universal Declaration for Human Rights, John Kiriakou, a former CIA agent, stepped forward on national television to tell us that the CIA tortures and torture works. Normally more responsible, ABC News’ Brian Ross conducted the uncritical interview (more like “chat“) with Kiriakou and called him a “whistleblower,” despite his Mukasey-like lack of commitment demonstrated in phrases like “waterboarding, at least right now, is unnecessary.” (see Mukasey’s declaration on the Torture Memo: “It was unnecessary.”). Unfortunately: the only whistle that torture apologist Kiriakou blew was the one used to attract attention to get himself a book deal.

Was there an unequivocal cry of “Shame!” and a demand for accountability after Kiriakou’s revelations? No. Far from it. The New York Times, for its part, did a sympathy piece for the CIA torturers. In it, journalist Scott Shane took care to remind us of the highly relevant fact that Kiriakou is a father of four (of course, there is no mention of, for instance, Maher Arar, tortured innocent man and father of two). In other words, he has others to support in this time of need when, as Harvard law professor and former OLC head Jack Goldsmith says in horror, family men like him might see their reputation destroyed, their careers lost! Such harsh punishment for simply engaging in war crimes condemned for centuries? Have a heart, people.

Thankfully for the career torturers, the government has one. It’s dug deep to find the same one that was lying unused since the President commuted Scooter Libby’s sentence. This is clear because a week has passed, and no one with authority in government has suggested the obvious:

THOSE WHO AUTHORIZED OR DID THE TORTURE DESCRIBED BY KIRIAKOU SHOULD BE PROSECUTED.

Instead, the focus is conveniently on the destruction of the videotapes of the torture. Type in the words “CIA” and “investigation” into Google news search, and you will find thousands of hits about the torture videos’ destruction. Now, obstruction of justice is serious and should be investigated. But what about the torture itself?!?! Even a Reuters article titled, “Lawmakers Launch Waterboarding Investigation” is actually about the start of inquiries into the CIA torture tapes destruction.

It’s the Abu Ghraib scandal spin all over again, and we’re falling for it. In the case of Manadel al-Jamadi’s homicide while in CIA custody, remember that the prosecution was of the two low-ranking Abu Ghraib soldiers who posedin the photographs of his dead body wrapped in ice. Their crime? Taking the pictures. (See “Ghosts of Abu Ghraib”). But Mark Swanner, the CIA agent who, along with Navy SEALs, reportedly killed Manadel al-Jamadi and then attempted to cover up the crime, walks free today. Former US Attorney Paul McNulty, infamous for his role in the attorney firing scandal, was in charge of prosecuting al-Jamadi’s homicide and never brought it forward.

Not only is the torture itself not being investigated, the CIA is weighing whether to prosecute Kiriakou for talking about the torture. And to top it off, the Attorney General who couldn’t bring himself to say that waterboarding is torture is now in charge of an investigation about the destruction of evidence of waterboarding. Hurray for justice!

Moreover, Mukasey has told Congress he will not cooperate with its investigation for fear of appearing political (sigh) and has asked it to be stopped. Nice work Schumer and Feinstein. An A+ to the Senate for picking that defender of the law as Attorney General. Excellent job to all the senators running for president, who didn’t even show up to vote against Mukasey (i.e. McCain, Clinton, Biden, Obama, and Dodd).

With news like this, who needs satirists? Writers’ guild stay on strike. We have no need for Stewart and Colbert. Anyone can connect the dots. Raw hipocrisy is being churned out, live and unedited. Then again, at least Stewart and Colbert make us laugh. And none of this is funny.

[UPDATE: Today, the Center for Human Rights and Global Justice at NYU Law School released a report with testimony Mohamed Farag Ahmad Bashmilah, a torture survivor with personal knowledge on conditions within CIA black sites. Who will call for justice? It’s more than the tapes; it’s the torture.].

Said religious leaders from evangelical Christian, mainline Protestant, Jewish, Muslim, Roman Catholic and other communities, in an ad published today in the Des Moines Register. According to a press release, the full-page ad was produced by the National Religious Campaign Against Torture in partnership with Evangelicals for Human Rights and was signed by 48 prominent figures, including former President Jimmy Carter, former NJ governor Thomas Kean.

It reads:

• Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear.
• It degrades everyone involved – policy-makers, perpetrators and victims.
• It contradicts our nation’s most cherished values.
• Any policies that permit torture and inhumane treatment are shocking and morally intolerable.
• Nothing less is at stake in the torture abuse crisis than the soul of our nation.
• What does it signify if torture is condemned in word but allowed in deed?
• Let America abolish torture now – without exceptions.

NYTimes reports today.

We warned you, Chuck Schumer. Dianne Feinstein. Mukasey’s playing a fun wordgame again, claiming that by blocking Congressional inquiries and refusing to respond to the scandal of torture and cover-up, he simply refrains from “being political”– just like he promised in his confirmation hearings. Clever.

Meanwhile, in very (ahem) apolitical character, Mukasey published an op/ed in today’s LA Times, calling for Congress to enact FISA reform, ie. to push the bill that amnesties the telecom companies and institutionalizes our overseas warrantless wiretapping program. So Mukasey can meddle in Congress’ affairs, but Congress can’t meddle with his? That is, he can be political whenever he chooses to be?

Are McCain, Specter, and all those who claimed to trust that Mukasey, this independent, upright character would keep his promises and come out strong against torture and spying as soon as he took office — are they liars, or simply the biggest fools on the hill?

Below is a brief non-exhaustive list of the torture evidence the government has thrown down the Orwellian memory hole.

Truths We Have Lost:

1. CIA torture tapes
2. Countless Abu Ghraib photos and videos collected in the US Army’s “Amnesty Box” (Watch “Ghosts of Abu Ghraib” for more information).
   
3. Rumsfeld memorandum posted at Abu Ghraib authorizing torture techniques with a handwritten note: “Make sure this happens!!”

Truths We Risk Losing:

1. Guantánamo litigation papers

Students and activists held protests on campuses and in front of federal court houses in solidarity with Guantánamo detainees in the lead up to the Supreme Court hearing oral arguments December 5, 2007.

The Court in the Boumediene case is set to decide the question of whether detainees can challenge the lawfulness of their detention in court through the centuries old legal guaranteed of habeas corpus rights. Currently, the government claims the detainees, held indefinitely without charge on the island prison, have no right to appear before a judge.

Members of Witness Against Torture protested in front of the Supreme Court itself, making for a striking juxtaposition of the symbols of injustice and supposed justice.

At a protest in front of New York’s federal circuit court building involving NYU students and activist leaders, Betty Brassel, 77 and member of the Granny Peace Brigade and the Raging Grannies, said “everyone deserves a fair trial.” NYU student Elena Landriscina explained that the protest was to “to raise public consciousness about the issue of habeas.”

Nina Catalano, one of the coordinators of a protest on Harvard campus involving mock renditions, distilled the question before the Court in Boumediene in a less legalistic way: “If you are in a cell and there is no judge to hear you when you scream, do you make a sound?”

The protests were coordinated in large part through the work of Susan Hu at the Center for Constitutional Rights.

Photo Credit: Míchel Angela Martinez, 2007

Listen to the audio recording or read the transcript.

[UPDATE: Shertaugh at IsThatLegal? posted about the Fisher case–also in Mississippi and four years after the White case below–in which the Mississippi Supreme Court called the “water cure” (waterboarding), torture.]

The following rejection of waterboarding comes from the Supreme Court of Mississippi in 1922, during the Jim Crow era:

Gerrard White, an 18-year-old black youth, was threatened and waterboarded by a group of armed white planters into “confessing” to the murder of a white shopkeeper in Mississippi in 1921. White was convicted and sentenced to death. He appealed. Describing waterboarding as “brutal treatment” and “barbarous circumstances,” the Mississippi Supreme Court ruled in 1922 that all the “confessions” obtained by the white planters were inadmissible. Mind you, the lower courts had already excluded the “confession” obtained during the waterboarding itself. Not even the state’s lawyer dared to argue that one was admissible. Rather, the case turned on whether two other“confessions” obtained by the planters minutes before and a few days after the waterboarding were also inadmissible.[1] The Court ruled all the confessions inadmissible.

Is it possible that a Jim Crow Mississippi Supreme Court—with its racist language, in a decision dealing with a black youth accused of murdering a white man—rhetorically condemned the use of waterboarding more readily than did our current Attorney General, Michael Mukasey?

EXCERPT:

White v. State, 129 Miss. 182 (1922).

Holden, J., delivered the opinion of the court.
…

The appellant Gerrard White, a negro boy eighteen years of age, employed as a farm hand, was arrested by the sheriff during the day, and taken to the scene of the murder, where it appears he was released, but was again taken into custody by a Mr. Gilbert, a planter, who took him into the store where the dead man lay, and, after locking the door, proceeded to obtain a confession from him. The store was a small building, and there were gathered in the building several other white men, plantation owners and managers, some of whom were armed. Among the dozen white men in the store was Mr. Gilbert, who testified that the appellant told him, alone, in the corner of the store, that he (appellant) was present and participated in the killing of Mr. Gross; that he (appellant) did not strike any of the blows, but saw Buck Kenard strike Mr. Gross with an ax, and that Ben Pickens struck him with a hatchet; that the purpose of the killing Was robbery, etc. None of the white men in the store testified to this confession except Gilbert. A few minutes after this alleged confession the hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant’s breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed that he knew where the money was, and told them that it was out at the “dredge ditch.” They then took the appellant to the dredge ditch to find the money, but there was no money found there or anywhere else so far as this record shows. Following this appellant was taken to the Greenville jail and in a few days thereafter the same Mr. Gilbert and Mr. Robertson visited appellant at the jail, and they testified that appellant again voluntarily confessed the crime while in his cell at the jail.

Now let us see what were the facts and circumstances under which the first confession at the store was made. Here was an ignorant negro boy, arrested and taken from his work in the field, and brought to the scene of the horrible murder. The sheriff had questioned him with reference to his guilt and whereabouts, and apparently concluded that he was not guilty, and thereupon released him, and after he was released, or, according to one view of this record, after he was turned over to a deputy, he fell into the hands of Mr. Gilbert and the other infuriated planters and plantation managers gathered there at the scene of the murder. They took him into the store building, locked the door behind him, and there, in the presence of the bloody corpse so foully murdered but a few hours before, and with the crowd of armed white men there assembled for the purpose of obtaining a confession, he was asked to confess, and under these circumstances he told Mr. Gilbert, and it seems that no one else heard it, about his connection with the crime, and who participated in it. Following this, a few minutes afterwards, the brutal treatment described as the “water cure” was administered to him, which succeeded in obtaining a second confession. It is well to state at this juncture that the negro boy denied confessing to the killing until after he was threatened, frightened, and mistreated as described by Mr. Gilbert himself. The word of the helpless negro boy was of no avail to him; though a human being, his situation was indeed hopeless and fearful…

We do not hesitate to say that a confession obtained under these conditions and circumstances is not free and voluntary…

At all events the confessions at the store were involuntary, and it may be that the one at the jail was also involuntary because induced by the same wrongful influence which induced the previous ones…

Reversed and remanded.

[1] Gerrard White had made three “confessions,” the first while cornered by the apparent leader of the armed white planters. Minutes later, the planters waterboarded White and extracted the second “confession.” White was jailed (seemingly on the basis of these first two “confessions”) and, days later, was visited by two men, one of whom had stood on White’s neck during the waterboarding. At the jail, the men extracted yet another “confession.”