• Reuters: U.S. Attorney General says CIA interrogations legal
• CNN: Attorney General won’t say whether waterboarding is torture
• The Day: Mukasey: No Special Prosecutor Planned [in CIA Torture Tapes Scandal]

—
Three main points in Attorney General Mukasey’s letter to Senator Leahy about waterboarding (January 29, 2008):

1) Mukasey thinks torture is okay sometimes (but we have to guess when): “If this were an easy question, I would not be reluctant to offer my views, but with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

2) Mukasey likes to keep his torture methods secret (legitimate interrogation programs all publish their rules): “Any answer I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a highly classified interrogation program.”

3) Mukasey thinks waterboarding could be legally approved for use again (torture at the stroke of the presidential pen): “’That process would begin with the C.I.A. director’s determination that the addition of the technique was required for the program. Then the attorney general would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed. Finally the president would have to approve of the use of the technique.”

—

Michael Mukasey: Keeper of the legal apparatus for the commission of war crimes

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?

The CIA torture tapes may have gone down the memory hole, but the Zubaida Papers probably have not. Apparently, “classified daily summaries” about Zubaida’s torture are probably still be out there in the hands of the FBI, CIA, and others. The existence of the Zubaida Papers was reported by the Washington Post.

Perhaps it is easy to delete a few tapes, but a paper trail leading through the offices of various members of government is much harder to destroy.

Somebody must have those “daily summaries.” Congress should subpoena those papers and make them public. His lawyers should request them in court. It is also time for a Freedom of Information Act (FOIA) request. Maybe somebody just might post them on the specialist government transparency site: Wikileaks.org.

Let all of the above happen all at once. Time for the truth. Publish the Zubaida Papers!

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

Listen to the audio recording or read the transcript.