By William Fisher
Attorney General Michael Mukasey today refused to open a criminal investigation into the Central Intelligence Agency’s (CIA) use of waterboarding and other “enhanced interrogation techniques” or to let Congress see the memorandum prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) that concluded that these practices were legal.
The DOJ found waterboarding “legal at that time,” Mukasey told the House of Representatives Judiciary Committee, but said the documents relating to that conclusion were classified. He added that no criminal investigation was feasible because it would place the DOJ in the position of investigating procedures it had found to be lawful.
At his confirmation hearings last October, Mukasey declined to say whether he thought waterboarding was torture.
Republican members of the Judiciary Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.” Mukasey declined to answer.
Mukasey also addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the law, including granting retroactive immunity to private telecommunications companies which cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
He said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.”
The issue of granting immunity to the telecom companies is at the center of the Senate’s current debate on the reauthorization of the FISA law, which is set to expire next week. The law requires the government to obtain warrants from a special FISA court before phone calls or emails involving Americans are intercepted. This requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
The House hearing came at a time when the issue of interrogation techniques was grabbing headlines again after a period of relative silence. The headlines were triggered by the disclosure yesterday by White House spokesman Tony Fratto, who said that waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.
Fratto said such extraordinary circumstances could include a "belief that an attack might be imminent."
In another surprise disclosure yesterday, CIA Director General Michael Hayden told a Congressional committee that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody. The White House has always denied that the U.S. had engaged in torture but had never confirmed that waterboarding had been used.
The White House comments came a day after Hayden testified before a congressional committee that the agency had used waterboarding on Al Qaeda suspects in 2002 and 2003. He also identified three prisoners, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed, who he said were the only detainees subjected to the method.
Waterboarding refers to a practice that involves strapping down a prisoner, placing a cloth over his face and dousing him with water to simulate the sensation of drowning. The technique has been known since the Spanish Inquisition and has been the subject of a number of war crimes trials, including trials of Japanese soldiers who used waterboarding on American troops during World War Two.
The White House position on the issue is emblematic of its long-standing efforts to expand the power of the executive branch of government and push back against attempts by Congress to limit the president's authority.
Senate Democrats have joined numerous legal and human rights advocacy groups in demanding a government investigation into the matter to determine whether laws forbidding torture were broken. Today, Senate Majority Whip Richard J. Durbin, Illinois Democrat, told Mukasey in a letter that he would stall the nomination of U.S. District Judge Mark Filip in Chicago to be deputy attorney general until Mukasey responds to his request for a criminal investigation and other torture-related inquiries.
While the issues of waterboarding and other harsh interrogation techniques have rarely been discussed by those currently seeking their party’s presidential nomination, leading candidates have spoken out on the subject.
Despite her often-expressed opposition to torture, Hillary Clinton said in a meeting with the New York Daily News editorial board in October that waterboarding and other harsh interrogation practices are “acceptable in some circumstances.”
Asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, she said there is a place for what she termed "severity." The conversation referred to waterboarding, hypothermia, and other techniques commonly described as torture.
"I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded, adding, “There has to be some check and balance, some reporting.”
Her Democratic Party opponent, Sen. Barack Obama of Illinois, has said in speeches that if he becomes the nominee, his opponent “will not be able to say that I wavered on something as fundamental as whether or not it’s OK for America to use torture, because it’s never OK.”
Their leading Republican rival, Sen. John McCain of Arizona – who was tortured during his five years as a prisoner of war during the Vietnam conflict -- has been a consistent leader of efforts to outlaw waterboarding and other harsh interrogation methods. In a recent GOP presidential debate, McCain said it was inconceivable that "anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law."
Mc Cain has been an outspoken supporter of two laws banning the practices -- the so-called McCain Amendment to the Detainee Treatment Act of 2005, and the 2006 Military Commissions Act. These laws -- as well as a Supreme Court ruling on the treatment of detainees – have been widely interpreted as banning the CIA's use of extreme interrogation methods.
U.S. and international organizations have reacted angrily to the Administration’s positions. Amnesty International called for a full, independent and prompt criminal investigation. The organization also called for an investigation that goes beyond that initiated by the U.S. Attorney General last month into the destruction by the CIA of videotapes of interrogations, and is fully consistent with international standards
Amnesty’s Mary Shaw told us, “Waterboarding is indeed a form of torture. For this reason, the Army Field Manual expressly prohibits its use. It clearly violates U.S. and international laws against cruel, inhuman, or degrading treatment. No exceptions, no matter when it happened or under what circumstances.”
Amnesty is calling on Congress to “pass legislation that would ensure uniform interrogation standards for anyone in U.S. custody or control, anywhere in the world. By voting to restrict all U.S. agents to the interrogation techniques in the Army Field Manual, Congress can take a significant step towards preventing torture and ill treatment from occurring in the future, and towards restoring this country's moral leadership in the world.”
According to Amnesty’s Rob Freer, “It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations."
The United Nations also weighed in on the torture issue this week. Manfred Nowak, the U.N. Special Rapporteur on torture, blasted the White House for defending the use of waterboarding and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.
"This is absolutely unacceptable under international human rights law," he said. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."