When asked at his confirmation hearing whether waterboarding used and approved by the Bush administration against detainees was torture, Michael Mukasey refused to answer because he had not been “read-in” on the details of the program. Well, after nearly three months as Attorney General, Mukasey has had plenty of opportunity to get any information he said he needed.

Having been “read-in” on the U.S. interrogation programs, what does Attorney General Mukasey think of waterboarding now? On January 30 at 10AM, he will have a chance to go before the Senate Judiciary Committee that voted to confirm him and answer precisely that question.

Senate Judiciary Committee Democrats have asked Mukasey in a letter to come prepared to answer two questions:

1. Is the use of waterboarding as an interrogation technique illegal under U.S. law, including treaty obligations?

2. Based on your review of other coercive interrogation techniques and the legal analysis authorizing their use, what is your assessment of whether such techniques comply with the law?

Both these questions are good, but they do not touch on the central issue: accountability. As explained in a previous post, only the threat of criminal sanction can stop the U.S. torture program, and if the senators shy away from demanding that, they will be handing another victory to the torturers. If the senators are serious about ending the torture policy, they must also ask Mukasey the following questions:

3. Was the authorization of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

4. Was the use of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

5. Was the authorization of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws? Was the use of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws?:

• (1) Forcing an individual to be naked, perform sexual acts, or pose in a sexual manner.

• (2) Placing a hood or sack over the head of an individual, or using or placing duct tape over the eyes of an individual.

• (3) Applying a beating, electric shock, burns, or other forms of physical pain to an individual.

• (4) Subjecting an individual to the procedure known as `waterboarding’.

• (5) Subjecting an individual to threats or attack from a military working dog.

• (6) Inducing hypothermia or heat injury in an individual.

• (7) Conducting a mock execution of an individual.

• (8) Depriving an individual of necessary food, water, or medical care.

4. Will you appoint a special counsel to conduct a full, public, and impartial criminal investigation on the authorization or use by U.S. personnel or assets of any of the above mentioned techniques against detainees?

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.

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

A Timeline of Torture Flip-Flopping:

1988: President Reagan asks Senate to give advice and consent to his signature of the UN Convention against Torture.[1]

1993: Democrat-controlled Senate approves bill containing statute criminalizing torture by a vote of 95 to 4. President Clinton signs it into law in 1994.[2]

1994: The US ratifies the UN Convention against Torture, signed by President Reagan in 1988.[3]

1996: Republican-controlled Senate unanimously approves War Crimes Act, criminalizing torture and other violations of the Geneva Conventions. President Clinton signs it into law.[4]

2005: Republican-controlled Senate passes the Detainee Treatment Act by a vote of 90-9, banning cruel, inhuman, and degrading treatment of detainees under any type of US custody anywhere. President Bush issues a signing statement declaring he may ignore the law.[5]

2006: Republican Senators lead negotiations on the Military Commissions Act of 2006, which is passed, gutting much of the War Crimes Act. The vote is 65-34, including 12 “Yeas” from Democrats.[6]

2007: Democrat-controlled Senate gives advice and consent by a vote of 53-40 to Mukasey as attorney general, a man who publicly declares his wish to avoid creating legal trouble for waterboarders (read torturers) and those who approved waterboarding (read torturers).[7]

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[1] President Ronald Reagan signed the UN Convention against Torture on April 18, 1988, stating, “[The Convention] marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.”

 

[2] The Torture Statute criminalizing torture was enacted by Congress in 1994 and signed by President Clinton into law on September 13, 1994. The Senate voted 95-4 to pass the omnibus bill containing the torture criminalization on November 19, 1993. The measure was intended to bring the US into compliance with the UN Convention against Torture, which was ratified on October 21, 1994.

[3] Id.

[4] A Republican controlled Congress enacted the War Crimes Act in 1996. The Senate passed it by unanimous consent. President Clinton signed it into law August 21, 1996. The War Crimes Act criminalized violations of the Geneva Conventions to pave the way for prosecutions of foreign officials who tortured Americans.  The original bill was sponsored by staunch conservative Walter Jones Jr. (R-NC) in the House during the Republican-controlled Congress.  DoD’s general counsel declared full support for the bill and even suggested making the list of war crimes longer.  The Pentagon, opting to set a high bar for conduct, did not oppose the fact that the War Crimes Act applied to actions by US personnel.

[5] A Republican controlled Congress banned cruel, inhuman, and degrading treatment to all detainees under US custody everywhere. The law also limited US military interrogations (though not those of the CIA) to methods outlined in the Army Field Manual. The vote was 90 to 9. President Bush purported to reserve the right to ignore the law through a signing statement.

[6] A Republican controlled Congress gutted most of the War Crimes Act by enacting the Military Commissions Act (i.e. Torture Law) on September 29, 2006. Negotiation regarding the Torture Law were concentrated in three Republican Senators. President Bush signed the Torture Law on October 17, 2006.

[7] A Democrat controlled Senate approved Mukasey for attorney general on November 8, 2007, without a filibuster attempt despite his failure to commit to meaningfully uphold either the Torture Statute or the War Crimes Act as evidenced by his refusal to declare waterboarding illegal.

The following entry is taken from a press release by Torture Abolition and Survivors Support Coalition International. All quotes are from survivors of torture, and members of that coalition.

Nasim, a survivor of waterboarding from Ethiopia, who does not want her last name in the press, says that she is “brought back to the torture chambers every time I hear the sound of splashing water. In the shower, when water hits my face, I must remind myself that I am not strapped to a board and that my lungs will not fill up with water until I lose consciousness. Though it has been years, the fear and pain are still there. There can be no debate that waterboarding is torture.”

Anthony Ibeagha, a survivor from Nigeria, said that “this confirmation is disrespectful to me as a person and only exacerbates the pain of torture which has come to be my life.”

—

Dianna Ortiz, a US nun and survivor of torture in Guatemala, said that “the Senate may have substituted the name Mukasey, but they voted for torture. What congress and Judge Mukasey have said loudly and clearly is that they have no concern for those of us who were tortured. First we were betrayed by our torturers; now we are betrayed by the government of the United States. Those who voted for torture will go unconcerned to their dinners and cocktail parties, while we go home to our nightmares.”

Sister Ortiz wrote of her experience watching the Senate Judiciary Committee’s vote on Mukasey here: http://torturelaw.org/blog_post.php?post=41

No surprise: the Democrats failed to deliver on a fundamental principle. For those who want to stop the U.S. torture program, not all is lost, however. Let the whole episode be a warning to would-be torturers that the whole world knows of their deeds, and that the discussions of criminal liability are no longer happening only in the corners of coffee houses among lefty campus groups.

That talk is now on the front page of the NY Times. Former military and CIA officials have come out against the torturers.

For those who insist on disappearing people into secret prisons to be tortured: know that one day the law will catch up with you. It ‘s already getting close.