By William Fisher
Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks.
Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA.
That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture.
Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.
News of Jarrett’s investigation can only be seem as something of a vindication for him. In 2006, when he tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, President Bush denied security clearances for Jarrett’s investigators, thus effectively shutting down the investigation.
But immediately after the Senate confirmed Michael Mukasey as attorney general last November, Bush relented and Jarrett’s staff began their review. That probe is ongoing.
Meanwhile, the future of one of the authors of some of the “torture memos” now being investigated remains iffy. He is Steven Bradbury, who has been nominated by President Bush to be chief of the Office of Legal Counsel (OLC). One of the DOJ’s most influential offices, OLC is responsible for drafting the legal opinions of the Attorney General and for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
Senators Whitehouse and Durbin – and a number of other lawmakers - have called on Mr. Bush to withdraw the Bradbury nomination.
Senator Whitehouse, a former United States attorney, said that the so-called “torture memos”, as well as classified opinions he had reviewed, failed to meet the Justice Department’s standards for scholarship.
He said that in approving waterboarding, the opinions failed to recognize U.S. prosecution of cases against Japanese officers for waterboarding American prisoners during World War II, and the 1983 opinion of a federal appeals court upholding the conviction of a Texas sheriff for using “water torture” on jail inmates.
Bradbury’s recent congressional testimony could not have provided much comfort to his critics. Appearing before a House committee, Bradbury maintained that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to meet the definition of torture.
In surprisingly direct testimony, Bradbury described in chilling detail how waterboarding was used to compel disclosures by prisoners suspected of being member of al-Qaeda.
One of those subjected to this tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission. That raises the question of whether evidence obtained through torture will be admitted as evidence in his trial.
But Bradbury denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He did acknowledge that the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began.
These developments would not be nearly as remarkable absent the steel curtain of secrecy behind which the Bush Administration has hidden for the past seven years. Perhaps we’re about to get our first peeks behind that curtain – albeit reluctantly and glacially.
In the aftermath of Nixon’s resignation, students of politics posited the notion that the cover-up is always worse than the crime. The modus operandi of Bush Administration has managed to debunk that old saw.
In the world of George W. Bush, the crime and the cover-up are equally disgraceful.