Torture

Army Official: Yes, Waterboarding Breaks International Law

Paul Kiel | February 27, 2008, 2:16PM

With the parade of administration officials who've testified about waterboarding in the past several weeks -- that it was once legal, but is not anymore (though it could be found legal again); that it may "feel like" torture, but that doesn't mean it is torture; that as the U.S. practices it, it bears no relation to the technique used by the Spanish Inquisition (it's more in line with the Khmer Rouge way of doing things) -- you can be excused for feeling more than a little confused.

And you may have despaired of ever seeing a clear, unequivocal exchange on the topic with a government official. Like this one from today's hearing before the Senate Armed Services Committee, with Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency:

Sen. Carl Levin (D-MI) asked, "General, do you believe that waterboarding is consistent with Common Article 3 of the Geneva Conventions?"

After pausing a moment to think, Maples replied, "No, sir, I don’t."

"Do you think it’s humane?" Levin asked.

"No, sir, I think it would go beyond that bound."

Later, Sen. Jeff Sessions (R-AL), apparently uncomfortable with the deceptive simplicity of that exchange, added some much needed context, pointing out that CIA interrogators had waterboarded detainees "only three times," and that they had done so before the Supreme Court ruled in 2006 that the Geneva Conventions must apply.

Torture

Controversial Pentagon Official Resigns

Paul Kiel | February 25, 2008, 6:47PM

Last week, Col. Morris Davis, the former prosecutor told reporters that he'd had a conversation with the Pentagon's general counsel William Haynes, during which Haynes had said about the Gitmo tribunals that "We can't have acquittals, we've got to have convictions."

It made Haynes, already a controversial figure because of his role crafting the Pentagon's interrogation policies, even more controversial. Davis said that he resigned when he was put under Haynes' chain of command.

And now Haynes is gone.

A press release this afternoon from the Department of Defense:

The Department of Defense announced today that General Counsel of the Department of Defense William J. Haynes II is returning to private life next month.

Secretary of Defense Robert M. Gates said of Haynes, “I am sorry to see Jim leave the Pentagon. I have valued his legal advice and enjoyed working with him. Jim held this important post longer than anyone in history and he did so during one of America’s most trying periods. He has served the Department of Defense and the nation with distinction.”

Said Haynes, “I thank the President and the Secretary of Defense for their confidence and for the opportunity to serve. I leave the Pentagon humbled and inspired by the selfless sacrifices of the men and women, uniformed and civilian, who defend our country. And, I thank their families.”

Haynes had already tried to move out of the Pentagon once -- the White House nominated him to be a federal appeals court judge, a nomination that ultimately failed due to Democratic opposition.

Torture

Former Gitmo Prosecutor to Testify as Defense Witness

Paul Kiel | February 22, 2008, 2:26PM

The Pentagon was successful in preventing Col. Morris Davis from testifying before Congress. But he's taking a step that could be even more damaging: agreeing to testify as a defense witness in a Guantanamo Bay tribunal. From the AP:

Air Force Col. Morris Davis, who resigned in October over alleged political interference in the U.S. military tribunals, told The Associated Press he will appear at a hearing for Salim Ahmed Hamdan.

"I expect to be called as a witness ... I'm more than happy to testify," Davis said in a telephone interview from Washington. He called it "an opportunity to tell the truth."

At the April pretrial hearing inside the U.S. military base in southeast Cuba, Hamdan's defense team plans to argue that alleged political interference cited by Davis violates the Military Commissions Act, Hamdan's military lawyer, Navy Lt. Brian Mizer, told the AP.

The Wall Street Journal reports (sub. req.) that Morris' testimony could potentially impact all of the tribunals.

Davis also repeats to the AP what he told The Nation: that William Haynes, the Pentagon official currently overseeing the tribunals, had told Davis in 2005 that "We can't have acquittals, we've got to have convictions."

Signing Statements

McCain: Bush Should Veto Anti-Torture Bill

Paul Kiel | February 20, 2008, 2:29PM

No real surprise here. Sen. John McCain (R-AZ) voted against a bill in the Senate that would have confined the CIA to interrogations outlined in the Army Field Manual -- that means no ambiguity about the use of waterboarding or other "enhanced interrogation" techniques. We explained his position at length here.

The President has threatened to veto the bill, and because sometime swing votes like McCain, Sen. Arlen Specter (R-PA), and Lindsey Graham (R-SC) oppose it, a veto override vote in the Senate seems certain to fail. Today, McCain told reporters that Bush should veto the bill and said he's banking on the consistency of his position on the issue of torture overriding the subtlety of his stance. From the AP:

"I think I can show my record is clear. I said there should be additional techniques allowed to other agencies of government as long as they were not" torture.

"I was on the record as saying that they could use additional techniques as long as they were not cruel, inhumane and degrading treatment," McCain said. "So the vote was in keeping with my clear record of saying that they could have additional techniques, but those techniques could not violate" international rules against torture.

Of course, that's the administration's position, too: we don't "torture."

Interestingly, McCain also took the opportunity to outline a real difference between himself and the president: he says that if he were elected president, he wouldn't use signing statements -- those statements Bush has tacked on to a number of important bills (including McCain's anti-torture amendment) that essentially say, "NOT." As McCain put it: "If I disagree with a law that's passed, I'll veto it."

Torture

Former Gitmo Prosecutor: Pentagon Official Said "We Can't Have Acquittals"

Paul Kiel | February 20, 2008, 11:20AM

At this point, it's not even controversial to say that the military commissions at Guantanamo Bay are a sham. The current chief judge there has written that the military tribunals have “credibility problems." And the former chief prosecutor, after resigning, publicly criticized the system as "deeply politicized."

Now that former prosecutor, Col. Morris Davis, has given more evidence of that politicization in an interview with The Nation after the six Gitmo detainees were charged. Davis says that in an August, 2005 meeting with William Haynes, then the Pentagon's general counsel, Haynes seemed to completely discount the possibility of the military tribunals acquitting any of the detainees. Now, of course, Haynes has been installed as the official overseeing the whole process, both the prosecutors and the defense. From The Nation:

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"

Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."

Back in December, the Defense Department blocked Davis from testifying before the Senate Judiciary Committee. It's becoming increasingly clear why.

Torture

Lieberman: Waterboarding is OK by Me

Paul Kiel | February 15, 2008, 4:37PM

Well, we know why Sen. Joe Lieberman (I-CT) voted "nay" Wednesday. "[Waterboarding] is not like putting burning coals on people's bodies. The person is in no real danger. The impact is psychological," he says.

And while Sen. John McCain (R-AZ) has responded at length to explain why "enhanced interrogation" is OK when done by the CIA (but not the Army), we still haven't heard from one of the surprising "nay" votes: Sen. Arlen Specter (R-PA). Our request for explanation has gone unanswered. But if you've seen him address this anywhere, please let us know.

Torture

We Do Not Torture Like The Spanish Inquisition... It's More Like the Khmer Rouge

Paul Kiel | February 15, 2008, 3:02PM

Can there be a prouder moment in our nation's history? Yesterday Justice Department Official Steven Bradbury rallied to the defense of the CIA's use of waterboarding, arguing that the technique used by the CIA was nothing at all like the "water torture" used by the Spanish Inquisition. "The only thing in common is the use of water," he argued.

But as Marty Lederman, a veteran of the Justice Department's Office of Legal Counsel, writes, in distancing the CIA's technique from that used by the Spanish Inquisition and the Japanese in World War II, Bradbury made it plain that the technique he was describing was closer to "the sort popularized by the French in Algeria, and by the Khmer Rouge. This technique involves placing a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head." He quotes Darius Rajali, author of Torture and Democracy, as saying that this technique was "invented by the Dutch in the East Indies in the 16th century, as a form of torture for English traders."

So, in conclusion, comparing the CIA's technique to the Spanish Inquisition is preposterous. We're more in the mold of the Dutch 16th century/French in Algeria/Khmer Rouge way of doing things.

And if you're looking for a rebuttal after reading Bradbury's in-depth analysis of waterboarding's legality under the torture statute, see Marty:

Let's be very clear: This so-called "analysis" is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible, for reasons I have discussed at length. The fact that Judge Mukasey continues to abide by it is a scandal. And the fact that Congress has not said a word about this legal linchpin of the OLC/CIA regime is even worse.

Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it.

Torture

The Calculus of Torture

Paul Kiel | February 15, 2008, 2:06PM

Yesterday, Steven Bradbury, the Justice Department official who heads up the Office of Legal Counsel, testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. We posted video of him explaining how the waterboarding practiced by the CIA was miles away from that practiced by the Spanish Inquisition -- it was a much more careful and controlled practice (there's no jumping on the victim's stomach or vomiting of blood).

But that wasn't even the most crucial part of his testimony. Bradbury writes the legal opinions that tell the administration how far they can go. And when he (and earlier John Yoo) advised the administration that it was legal to waterboard prisoners, they had their reasons.

With regard to waterboarding, Bradbury explained with chilling sangfroid his legal reasoning. We've provided a full transcription of his answers below. It's the most detailed description of the Justice Department's analysis with regard to a particular interrogation technique ever given.

If you read on, you'll learn that "something can be quite distressing or uncomfortable, even frightening, but if it doesn't involve severe physical pain and it doesn't last very long, it may not constitute severe physical suffering." And you'll also learn that while the victim from waterboarding might panic from the sensation of drowning, the real question is whether "those factors cause prolonged mental harm." Bradbury concluded that waterboarding does not.

The Military Commissions Act of 2006 drastically changed the equation, Bradbury testified, and the Department hasn't yet made an analysis of whether waterboarding is legal under its requirements. So for now it's off the table.

First, Bradbury discussed the torture statute under questioning by Rep. Trent Franks (R-AZ):

Read more »

Torture

Justice Dept. Official: CIA Waterboarding Was Subject to "Strict Limitations"

Paul Kiel | February 14, 2008, 1:12PM

The CIA's use of waterboarding was legal and not torture, a Justice Deparment official argued this morning, because it was a "procedure subject to strict limitations and safeguards" that made it substantially different from historical uses of the technique by the Japanese and the Spanish Inquisition.

Steven Bradbury, the Justice Department official who heads up the Office of Legal Counsel, is testifying before a House Judiciary subcommittee this morning. And he made an unexpected argument when Chairman Jerrold Nadler (D-NY) asked him whether waterboarding violated the law against torture.

It did not, he said. And he argued that what the CIA did bears "no resemblance" to what torturers in time past have done. "There's been a lot of discussion in the public about historical uses of waterboarding," he said. But the "only thing in common is the use of water," he said. Here's video:

The Spanish and Japanese use of "water torture," he said, "involved the forced consumption of a mass amount of water." Asked by a Republican whether Bradbury was aware of any "modern use" of waterboarding that involved the "lungs filling with water," Bradbury said no.

The Japanese forced the ingestion of so much water that it was "beyond the capacity of the victim's stomach." Weight or pressure was then applied by standing or jumping on the stomach of the victim, sometimes leading to "blood coming of the victim's mouth." The Spanish Inquisition would use the technique to the point of "agony or death."

But the CIA wasn't doing that, he argued. "Strict time limits" were involved -- presumably governing the length of time that interrogators could induce the sensation of drowning. There were "safeguards" and "restrictions" that made it a much more controlled procedure. Because of that, he said, the technique did not amount to torture.

But Bradbury said that subsequent laws and Supreme Court decisions passed in 2005 and 2006 had changed his office's analysis, and in 2006 the CIA removed waterboarding from its authorized battery of interrogation techniques.

Update: Once again, here's former Navy instructor describing the technique of waterboarding, and here's a video demonstration.

Torture

Justice Dept. Official Continues Administration's Waterboarding PR Offensive

Paul Kiel | February 14, 2008, 11:24AM

Two weeks ago, Attorney General Michael Mukasey came to testify before the Senate Judiciary Committee armed with a fact that should have placated the Dems. He knew he was set to get walloped if he said again that his mind still wasn't made up on waterboarding. So he told the panel that waterboarding isn't currently legal -- but his mind still isn't made up as to whether it's absolutely illegal.

But that didn't seem to placate anybody. Instead of the Dems reacting with delight that waterboarding wasn't currently authorized by the Justice Department, they were shocked at Mukasey's argument that the technique could possibly be authorized for use in the future.

But with the Senate passing a bill that would absolutely ban waterboarding, the administration has kept at it. And today, Steven Bradbury, the controversial acting head of the Justice Department's Office of Legal Counsel, reiterated what Mukasey said late last month. And once again, Bradbury says that waterboarding might be used, but before it was used, the CIA would need to first determine that it's "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership." That's the administration's "bright line" against torture.

This time, the administration seems to be getting the coverage it's wanted. The AP takes a look at Bradbury's testimony and headlines (seemingly forgetting Mukasey's testimony), "Justice Dept: Waterboarding not legal: Justice Department Says for First Time That Waterboarding Is Not Now Legal."

But while Bradbury doesn't say anything new about waterboarding, he does give the most detailed narrative I've seen for how the Justice Department has reacted to Congress' and courts' attempts to prohibit the use of torture. You can read the whole thing here. More from Marty Lederman on this here.

Must Read

Today's Must Read

Paul Kiel | February 14, 2008, 9:23AM

It's a mighty fine line to walk. Sen. John McCain (R-AZ) opposes torture. But when the Senate held a vote yesterday that would effectively prevent the CIA from employing torture by restricting interrogation techniques to those under the Army Field Manual, he voted against it.

You can read his extended explanation of that vote below. But here's what it comes down to. The bill yesterday would have restricted the CIA to the Army's rules for interrogating detainees. McCain believes that the CIA should have a freer hand. That includes the use of "enhanced interrogation" techniques.

Now, the Justice Department and the CIA haven't said exactly what those are. But precisely because the White House knew that they'd be fighting this battle, they've made quite an effort over the past month to broadcast that waterboarding is not on the list of possible techniques. That's what their PR offensive has been all about; waterboarding is off the table (for now), so let us keep our toys. Those other techniques "are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation," as Marty Lederman notes.

But by voting against the bill, McCain is saying that the CIA should have a free hand to employ techniques along these lines. At the same time, he stresses that the 2006 Detainee Treatment Act, the bill he himself sponsored, prohibits the use of any cruel, inhumane, or degrading treatment and treatment that "shocks the conscience." He hasn't said which of the techniques listed above meet that description. But he trusts that the Justice Department and CIA will arrive at a "good faith interpretation of the statutes that guide what is permissible."

Attorney General Michael Mukasey gave a taste of what that "good faith" interpretation is when he testified before Congress. What "shocks the conscience" depends on the circumstances, he said. Waterboarding might very well be OK, he argued, if the situation were dire enough.

But McCain says that waterboarding is torture. And as he says in his statement below, "It is, or should be, beyond dispute that waterboarding 'shocks the conscience.'" So he disagrees with the administration's "good faith" interpretation. But apparently he still has faith.

Confused? It's certainly not a position that's easily summarized. The major papers take a run at it this morning, and, well, the nuance just doesn't come through.

From The New York Times:

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Torture

Reid: Bill Is Opportunity to Condemn Torture

Paul Kiel | February 13, 2008, 5:50PM

Harry Reid:

"The Senate today declared that the Army Field Manual works and torture does not. In sending the President a bill that establishes one interrogation standard for the entire U.S. government, we are taking an important step toward restoring our moral leadership in the world. Military and foreign policy experts agree that torture is counterproductive. It elicits unreliable information, puts U.S. troops at risk and undermines our counterinsurgency efforts.

"It is now up to the President to show his own moral leadership and sign this bill into law. And if he refuses to do so, I hope the Republicans who voted for this bill's passage will stand up to the President and override his veto."

Torture

Senate Passes Bill with Ban on Waterboarding

Paul Kiel | February 13, 2008, 5:35PM

So now it's on to that veto. The Senate just narrowly passed the intelligence authorization bill, which contained a provision that would effectively ban the CIA's use of waterboarding and other "enhanced interrogation" techniques forbidden by the Army Field Manual.

The final vote was rather close -- 51-45, with a few Republicans crossing over to make the difference. There were a couple remarkable "no" votes, though, from senators who've vocally opposed the use of waterboarding. Both Sen. John McCain (R-AZ), who's vocally opposed the use of waterboarding, and Arlen Specter (R-PA) voted against. We've inquired why and we'll let you know what we find out.

Update: Here's the tally.

Torture

Senate Set to Pass Bill Banning Waterboarding

Paul Kiel | February 13, 2008, 3:06PM

This is what the administration's recent pro-waterboarding PR offensive had been leading up to. But the Republican side backed down.

Later this afternoon, the Senate will be voting on a bill authorizing the government's intelligence activities. Included in that bill is a measure sponsored by Sen. Dianne Feinstein (D-CA) that would restrict the interrogation methods the CIA could use to the Army Field Manual, which bans waterboarding and other harsh techniques currently used by the CIA. The Republicans had been expected to challenge that provision, forcing a vote. But they didn't. After a vote on the bill in 90 minutes or so, it will be on its way to the President, who has already announced that he will veto it.

So why the sudden retreat? It's not clear how the votes would have come down, exactly. But Sen. John McCain (R-AZ), who has frequently spoken out against waterboarding, was considered a key vote, creating the potentially awkward situation of him taking a stand against the president. 60 votes would have been needed to retain the measure. Now that situation has been avoided -- for now. If the president follows through with his veto threat, the Senate would hold a vote to override the veto, and McCain's vote would become an issue again, though perhaps this time, not such a crucial one.

Torture

Durbin Requests Inspector General Investigate DoJ Authorization of Waterboarding

Paul Kiel | February 12, 2008, 5:22PM

Following through on his earlier threat, Sen. Dick Durbin (D-IL), along with Sen. Sheldon Whitehouse (D-RI), wrote to the Justice Department's inspector general and Office of Professional Responsibility today to request that he investigate the Department's authorization of waterboarding.

Such an investigation, like a similar ongoing probe into the administration's warrantless wiretapping program, would focus on the circumstances surrounding the Department lawyers' advice (were they clearly just doing the bidding of the White House?) and whether they followed DoJ rules and standards in coming to that conclusion. It's up to the inspector general and OPR whether to launch the probe, however. The senators also asked that the results of any probe be made public.

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Torture

The "Clean Team"

Paul Kiel | February 12, 2008, 10:11AM

From The Washington Post:

The Bush administration announced yesterday that it intends to bring capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks, based partly on information the men disclosed to FBI and military questioners without the use of coercive interrogation tactics....

FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects' trust over the past 16 months by using time-tested rapport-building techniques, the officials said....

Prosecutors and top administration officials essentially wanted to cleanse the information so that it could be used in court, a process that federal prosecutors typically follow in U.S. criminal cases with investigative problems or botched interrogations. Officials wanted to go into court without any doubts about the viability of their evidence, and they had serious reservations about the reliability of what the CIA had obtained for intelligence purposes.

"It was the product of a lot of debate at really high levels," one official familiar with the program said. "A lot of people were involved in concluding that it may not be the saving grace, but it would put us on the best footing we could possibly be in. You can't erase what happened in the past, but this was the best alternative."

CIA Tapes

Investigation Focused on Tapes, Not Torture

Paul Kiel | February 11, 2008, 2:13PM

John Durham, the prosecutor tapped by Attorney General Michael Mukasey to probe the destruction of the CIA’s videotapes of interrogations, finally laid out in detail the purview of his investigation last week. And it’s clear that his focus is on the tapes themselves – not what they might show.

Given Mukasey’s refusal to investigate the use of waterboarding, that’s not much of a surprise. Mukasey had also allowed that Durham could look at the possible use of torture “if it leads to showing motive” for the destruction. Durham’s summary of his investigation jibes with that -- showing that it’s all about the tapes, but that why someone might have destroyed the tapes will also be key to his investigation:

The questions under active review in this investigation focus on whether any federal criminal offenses were committed in connection with the destruction of the…videotapes. More specifically, the investigation team is actively reviewing whether any person or persons obstructed justice, made false statements, or acted in contempt of court or Congress in connection with the destruction of the videotapes. With respect to potential obstruction of justice offenses, we are investigating whether the destruction of the videotapes violated any order issued by any federal judicial officer, and, if so, what the persons’ knowledge, motive, and/or intent was in destroying the tapes or causing their destruction….

Central questions for this investigation include: who within the federal government knew of the existence of the videotaped interrogations at issue; who was aware of the various orders that might have required the preservation of the videotapes; and who was involved, in any way, in the decision and/or directive to destroy the videotapes.

In other words, whether any of this will lead to an examination of the interrogation techniques that were used on the two detainees whose interrogations were videotaped is unclear.

Durham made the disclosure, which was first reported by The New York Times this weekend, as part of the government’s bid to convince a federal judge to withdraw an order to explain the tapes’ destruction. You can read it here.

Torture

Justice Department Declines Almost All Detainee Abuse Referrals

Paul Kiel | February 8, 2008, 1:40PM

Of the 24 cases of detainee abuse that the CIA's inspector general and Department of Defense have referred to the Justice Department for criminal prosecution in the last several years, the Department has declined to prosecute in 22 of them, according to a letter from a Justice Department official in response to Sen. Dick Durbin's (D-IL) question about "accountability for illegal conduct by civilians in Iraq and Afghanistan."

A prosecution team was formed in June, 2004 to handle the cases in the U.S. attorney's office for Virginia's Eastern District, and then-Attorney General John Ashcroft announced he'd be referring all pending cases there. While the Defense Department has prosecuted a number of soldiers for abuse, this team was formed to concentrate on abuses by civilian government employees.

And how have they done? Well, there have been no indictments. The DoJ official, Brian Benczkowski, disclosed that two of the cases remained pending -- it's unknown what those cases are. Benczkowski said that there had only been four referrals by the CIA's inspector general in the last year, and all four had been declined. You can read that letter here.

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Torture

WSJ: Contractors Likely Involved in Waterboarding

Paul Kiel | February 8, 2008, 11:50AM

There's still plenty to learn. From The Wall Street Journal (sub. req.):

The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.

Many of the contractors involved aren't large corporate entities but rather individuals who are often former agency or military officers. However, large corporations also are involved, current and former officials said. Their identities couldn't be learned....

According to two current and former intelligence officials, the use of contracting at the CIA's secret sites increased quickly in the wake of the 9/11 attacks, in part because the CIA had little experience in detentions and interrogation. Using nongovernment employees also helped maintain a low profile, they said.

The use of contractors continues, CIA Director Michael Hayden has admitted. That led Sen. Dianne Feinstein (D-CA) to ask Attorney General Michael Mukasey for an answer as to whether it is legal for contractors to employ "enhanced interrogation techniques," a question he said he didn't know the answer to during the hearing last week. That letter is below.

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Michael Mukasey

Durbin Calls for Inspector General Investigation of Torture Memos

Paul Kiel | February 8, 2008, 11:27AM

We know what Attorney General Michael Mukasey thinks about investigating the CIA's use of waterboarding. Not gonna do it.

And that's precisely what he said in a letter to Sen. Dick Durbin (D-IL), who's been hounding him on the issue, yesterday (you can read Mukasey's letter here). But Durbin thinks that Mukasey is missing the point. He writes:

...I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law” (my emphasis).

In other words, Mukasey's responses have been focused on whether the CIA agents (and possibly contractors) who carried out the waterboarding should be prosecuted. But Durbin says the emphasis should be on those who authorized the activity. He explains: "Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law."

And accordingly, Durbin writes that he will ask the Justice Department’s Inspector General and the Office of Professional Responsibility "to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful." You can read Durbin's letter in full below.

A similar investigation was launched in January, 2006 into whether the Department had properly reviewed the administration's warrantless wiretapping program; Bush ended it just as quickly as it began, however, by denying investigators the necessary security clearances. Shortly after Mukasey took office, that investigation started up again.

Durbin had demanded answers to a number of outstanding questions from Mukasey and said that he would hold the nomination of Mark Filip as deputy attorney general until he got them. Since Mukasey responded, he writes, he will release his hold on Filip's nomination.

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Must Read

Today's Must Read

Paul Kiel | February 8, 2008, 9:49AM

If the Bush Administration has taught us anything, it's that "torture" is in the eye of the beholder. It's the singular truth behind the repeated proclamations that "we do not torture."

The recent PR offensive has employed the same legerdemain. Administration officials have been making public statements about the use of waterboarding based on the same set of facts for the past week. But a simple shift in emphasis leads to a different headline.

Take, for instance, CIA Director Michael Hayden's testimony before the House intelligence committee yesterday. The New York Times proclaims "C.I.A. Chief Doubts Tactic to Interrogate Is Still Legal." The AP goes with "CIA Boss: Waterboarding May Be Illegal."

Here's what Hayden said, in response to a question of whether waterboarding was a "prohibited technique":

HAYDEN: It's not a technique that I've asked for. It is not included in the current program. And in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute.

Now, Hayden could have simply said "yes." But "yes" would not have been the right answer, exactly. Because what Hayden is saying is really no different from what Attorney General Michael Mukasey has testified: that waterboarding could possibly be used in certain pressing circumstances (the Jack Bauer scenario), but that in order for it to be used, the CIA would first have to ask for it, then the Justice Department would have to determine whether it's legal, and then the President would have to sign off on it.

So, in Hayden's words, "it is not certain" that waterboarding would be considered to be lawful. But Mukasey, the guy who runs the department that makes these determinations, made it crystal clear last week that it is far from certain that it is unlawful. "It is unresolved," in his words.

There was a similarly telling moment in Mukasey's testimony yesterday. Rep. Adam Schiff (D-CA) was pressing him on waterboarding and torture. Don't you think that it hurts America's standing in the world not to have a "bright line" on torture? he wanted to know. To which Mukasey responded:

We have a bright line. We bar the torture. The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounced on it one way or the other, as I think I...

Schiff countered:

And you think that's a bright line that we can hold up to the rest of the world, that it depends on whether it's part of a program authorized by an attorney in the Office of Legal Counsel? Is that the standard we would ask the rest of the world to hold up?

And don't forget that the guy responsible for making these determinations at the Justice Department, Steven Bradbury, the current acting head of the Office of Legal Counsel, has consistently given the White House what it wants, including two secret memos in 2005 that authorized a battery of enhanced interrogation techniques, including waterboarding. So much so that the White House has kept him in the spot for three years without Senate confirmation and is ready to go to battle for him again now.

Hayden, for his part, has certainly been striving to communicate that it is extremely unlikely, if not impossible, that the CIA would use waterboarding again. One could just take his word for it. On the other hand, that's a message more than a little muddled by Vice President Dick Cheney's speech yesterday:

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Michael Mukasey

Mukasey: The Law Is What The Justice Department Says It Is

Paul Kiel | February 7, 2008, 3:00PM

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was "insulated from criminal liability?"

Mukasey wanted to say it more carefully. "I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."

But even if that opinion was "inaccurate," Delahunt wondered, and that behavior really did violate the U.S. criminal code, you're saying that someone who relied on it would effectively have "immunity from any culpability?"

"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.

Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?

That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.

Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.

Mukasey replied that it was a "practical consideration."

When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."

Update: As I said earlier, it's worth recalling former OLC chief Jack Goldsmith's comments that the OLC has the power to dispense "advance pardons."

Torture

GOPer: 99% of Americans Would Support Waterboarding

Paul Kiel | February 7, 2008, 2:25PM

It's not even a close call, says Rep. Lamar Smith (R-TX). If you've got a terrorist, and he has information that could save thousands of Americans lives, waterboarding is a no-brainer: "99% of the American people" would support such a technique, he said. I guess that weak-kneed 1% would be the Democrats in Congress.

Smith began by saying, "I just want to express the personal opinion that I hope the administration will not be defensive about using some admittedly harsh but nonlethal interrogation techniques, even techniques that might lead someone to believe they're being drowned even if they're not."

Not content with his own take on American public opinion, Smith wanted Mukasey's opinion. Wouldn't you agree, he wanted to know, that 99% of the American people would endorse such techniques if they were used on a "known terrorist" with a "high expectation" that such information could save thousands of American lives?

Mukasey demurred. "I can't sit here and say what I think 99 percent of people would do." He began "I have, kind of, an instinct, but...:" before Smith went on, satisfied that his point had been made.

Of course, Smith could have relied on an actual poll of American public opinion, rather than his own instinct. Like, say, this CNN poll from late last year, where two-thirds of respondents said that waterboarding is torture and 58 percent said that the government shouldn't be allowed to use the technique. But that would have been much less gratifying.

A transcript of the exchange is below.

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Michael Mukasey

Mukasey: No, I Will Not Investigate Waterboarding

Paul Kiel | February 7, 2008, 11:44AM

Well, not that there was much mystery about it, but Attorney General Michael Mukasey immediately put any ambiguity to rest when he began his testimony before the House Judiciary Committee this morning.

Chairman John Conyers (D-MI) put it to him: since administration officials have disclosed that CIA agents waterboarded three detainees, "are you ready to start a criminal investigation?"

"No, I am not," was the direct answer.

His reasoning was a repeat of his answer to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department "cannot possibly" investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.

Update: Here's video:

Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.

Update: A transcript of the exchange is below.

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Must Read

Today's Must Read

Paul Kiel | February 7, 2008, 9:44AM

If it's seemed to you that the administration has blundered its way into its recent pro-waterboarding PR offensive, you're right.

It all started, Newsweek reports, when John Negroponte blurted out in an interview that "waterboarding hasn't been used in years":

Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to [a] senior administration official. "It was an accidental disclosure," said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip.

That's right: the "public-relations benefit." You might think that admitting to a technique internationally condemned as torture would have no PR pluses. But not from the administration's point of view. Negroponte's comments came right before Attorney General Michael Mukasey's scheduled appearance before the Senate Judiciary Committee, and the thinking, apparently, was that now Mukasey could state publicly that waterboarding is not a currently authorized technique (although it might be deemed necessary and legal in certain "circumstances," but let's not focus on that). That should help satisfy all those petulant Democrats and human rights activists, right?

For some reason, it seems to be having the opposite effect. Sen. Dick Durbin (D-IL) has called for a criminal investigation based on the disclosure that waterboarding occurred. And human rights activists have finally gotten the break they've been waiting for. From The Washington Post:

Tom Malinowski, Washington advocacy director for Human Rights Watch, said the Bush administration's admissions about waterboarding mark an important milestone. "It's not an abstract debate anymore," Malinowski said. "They've acknowledged that they've waterboarded people, and virtually every legal authority in the United States believes that waterboarding is torture and a crime."

Note: Newsweek also sheds light on those supposedly unique circumstances that led to the waterboarding of the three detainees in 2002 and 2003:

A former senior intelligence official who was working for the government at the time said intelligence officials were petrified that terrorists had smuggled a nuclear weapon into the United States and were planning to blow up New York City. The scenario was like a real-life episode of "24," the official said. Ultimately, the nuclear threat proved bogus.

Torture

White House Insists on Confirmation of Torture Memo Author

Paul Kiel | February 6, 2008, 4:35PM

It's starting to seem all of a piece.

Yesterday, administration officials publicly acknowledged that CIA agents, with Justice Department authorization, had waterboarded three detainees. And the administration is eager to prevent that authorization from being threatened. According to Senate Dems, the White House has refused to strike a deal on pending nominees until the Senate deals with the Justice Department official who's authorized the use of enhanced interrogation techniques including waterboarding.

For more than three years, Steven Bradbury has been the acting head of the Office of Legal Counsel, the crucial Justice Department office that has the power to issue "advance pardons," as former OLC head Jack Goldsmith put it. But Senate Democrats, because of Bradbury's role in approving the warrantless wiretapping program and enhanced interrogation techniques that include waterboarding, have opposed White House efforts to have him confirmed and remove his acting status.

That hasn't kept him from the job, however. It is, after all, a position that is supposed to require Senate confirmation. While Democrats, especially Sen. Dick Durbin (D-IL) have held firm, Bradbury has simply acted as the head of OLC. The Dems say that the administration has broken the law to keep him in the spot.

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Torture

We Don't Discuss Interrogation Techniques until We Want to

Paul Kiel | February 6, 2008, 1:03PM

It was one of the most familiar refrains from the White House's mouthpieces over the past several years: we don't discuss interrogation techniques. Take, for instance, this characteristic exchange between White House spokeswoman Dana Perino and a reporter at a briefing in December, after Perino explained that "al Qaeda listens closely to everything that we do and say"...

Q But when you have a former CIA officer, John Kiriakou, now saying that waterboarding was used -- since you're saying the interrogations were legal; he's saying on the record now, waterboarding was used in at least one case. You're saying waterboarding is legal?

MS. PERINO: Ed, I'm saying I'm not commenting on any specific technique. I'm not commenting on that gentleman's characteristics of any possible technique. I've given you a very general statement about interrogations being legal, limited and --

Q You just said it was legal.

MS. PERINO: I'm sorry?

Q You said it was within the legal framework.

MS. PERINO: Yes.

Q Everything that was done.

MS. PERINO: Yes.

Q So waterboarding is legal.

MS. PERINO: I'm not commenting on any specific techniques. And you can ask me all sorts of different ways, and we can go back and forth, but I'm not going to do it, Ed.

Only a few weeks ago, the line was still in vogue. But no more.

What's changed? Congress is pushing legislation that would limit the use of waterboarding, in addition to other enhanced interrogation techniques. So "the consensus" in the administration was to reverse course.

It's reminiscent of the White House's recent reversal with regard to documents concerning the administration's warrantless wiretapping program. For nearly a year, they ignored the House intelligence committee's request. But now that retroactive immunity is being fiercely contended in the new surveillance bill, the White House had a change of heart.

Note: TPM Reader BM writes in to ask that we remind readers on what this medieval torture technique entails. Not a bad idea. See here for a detailed description by former Navy instructor Malcolm Nance and here for a history lesson.

Torture

White House: Waterboarding Is A-OK

Paul Kiel | February 6, 2008, 11:38AM

The administration's pro-waterboarding PR offensive continues!

Today, White House spokesman Tony Fratto made clear that this was a clear, conscious decision to make the push, and that it's an interrogation tool they definitely want to have as an option going forward:

"And so the consensus was that on this one particular technique that these officials would have the opportunity to address them — in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them."

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said.

Fratto also apparently used the administration's it's not torture because "we do not torture" line. And "torture is illegal" and this was deemed legal therefore it's not torture. You can choose your favorite tautology.

I think for the first time, Fratto also flatly said that the attorney general (John Ashcroft) approved the use of waterboarding. We'll have the transcript of Fratto's remarks as soon as they're available.

Must Read

Today's Must Read

Paul Kiel | February 6, 2008, 9:50AM

What a long way we've come.

Remember when Vice President Dick Cheney off-handedly admitted to an interviewer that "a dunk in the water" is a "no-brainer" if it can save lives? The White House did its utmost to deny the obvious.

But the strategy has changed. Now administration officials are proclaiming in the open that yes, the U.S. waterboarded three detainees, yes, it was legal, and yes, there's a possibility we'd do so again. The stress, of course, is on the fact that waterboarding is not in the current authorized battery of interrogation techniques. But nevertheless, there it is. The administration has apparently decided that this is a debate they can win out in the open. From The Wall Street Journal (sub. req.):

Mark Lowenthal, a former senior CIA official who previously worked on Capitol Hill, said the debate over the aggressive antiterrorism tactics had become clouded by emotion and the administration brought forth the new details in an attempt to make its case more directly. "They feel like this debate has become...somewhat difficult, and they want to get it back on track," said Mr. Lowenthal.

As we reported late yesterday, Sen. Dick Durbin (D-IL) has already called for a criminal investigation. Anyone who watched Michael Mukasey's performance one week ago knows what the answer will be.

The major threat, as the administration sees it, is pending bipartisan legislation that would restrict the CIA to using the Army Field Manual as its guide to interrogating detainees. Yesterday, Hayden made a twofold response to that.

The first, as noted above, was to stress that the "circumstances" are very different from what they were five or six years ago -- and it's unlikely that waterboarding will be used again.

The second was to argue that the "enhanced interrogation" techniques were only employed by a small group of professionals (both CIA employees and contractors) who really know what they're doing. They've only been used on approximately thirty out of 100 detainees, he said. The Army Field Manual governs a much larger population of detainees and interrogators do not receive the same "exhaustive" training as those working for the CIA. It makes no sense, or as he put it: "it would make no more sense to apply the Army Field Manual to CIA -- the Army Field Manual on interrogations -- than it would be to take the Army Field Manual on grooming and apply it to my agency" (see below for Hayden's full argument on this).

It will be interesting to see how successful this more straightforward strategy will have. A number of key Republican swing votes -- including Sen. John McCain (R-AZ) -- would make the difference.

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Michael Mukasey

Durbin Calls for Investigation of Waterboarding

Paul Kiel | February 5, 2008, 6:01PM

Earlier today, CIA Director Michael Hayden confirmed that the U.S. had subjected three detainees to waterboarding.

Sen. Dick Durbin (D-IL) thinks that’s worth exploring. And in a letter today, he called on Attorney General Michael Mukasey to open an investigation:

In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated…. Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law.

You can read the letter in full below.

When Sen. Sheldon Whitehouse (D-RI) pressed the attorney general on this question last week, one of the arguments Mukasey deployed for not investigating was that the notion of any possible torture was hypothetical. Well, it’s not so hypothetical any more, Durbin is saying.

Durbin also says that he will keep a hold on the administration’s nominee for deputy attorney general, Mark Filip, until Mukasey answers this letter and a number of other letters from Congress. He explains: “I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress.”

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Torture

McConnell: No, I Did Not Say Waterboarding Was Torture

Paul Kiel | February 5, 2008, 2:45PM

Last month, Director of National Intelligence Michael McConnell caused a stir when he seemed to admit in a New Yorker article that waterboarding would be torture if done to him.

But as I pointed out at the time, McConnell actually made a strange qualification. He has a problem with his nose, he said ("I don't know if it's some deviated septum or mucus membrane, but water just rushes in"). So waterboarding would be torture to him -- because swimming without covering his nose is torture to him.

Coverage of Lawrence Wright's New Yorker piece, however, tended to focus on his statement, "Whether it's torture by anyone's else definition, for me it would be torture."

And in today's Senate intelligence committee hearing, Sen. Dianne Feinstein (D-CA) pressed him on this point. And McConnell insisted that Wright and the New Yorker had taken the quote "totally out of context." And waterboarding, he wants everyone to know, "is a legal technique used in a specific set of circumstances. You have to know the circumstances to be able to make the judgment."

Well, we've posted McConnell's remarks today alongside the original excerpt from the New Yorker piece so you can decide for yourself whether McConnell was taken "totally out of context." It seems to me that he was not -- and that it's just his position that is confusing. It's apparent from McConnell's remarks here and to Wright that he believes that waterboarding, artfully applied, is unquestionably legal. You just get the sensation of drowning. But "waterboarding taken to its extreme could be death," he explained today. "It could drown someone." And that seems to be where he draws the line.

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Torture

CIA Director Confirms Details of Waterboarding

Paul Kiel | February 5, 2008, 12:40PM

I guess they figure the cat's out of the bag. Last month, former Director of National Intelligence John Negroponte, trying to accent the positive, confirmed that the U.S. had used waterboarding, but said they hadn't done it "in years." Today, CIA Director Michael Hayden got more specific in a public Congressional hearing. From Reuters:

The CIA on three occasions shortly after the September 11 attacks used a widely condemned interrogation technique known as waterboarding, CIA Director Michael Hayden told Congress on Tuesday.*

"Waterboarding has been used on only three detainees," Hayden told the Senate Intelligence Committee, publicly specifying the number of subjects and naming them for the first time, as Congress considers banning the technique.

Those subjected to waterboarding were al Qaeda suspects Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri, Hayden said. [The CIA's destroyed torture tapes, remember, documented the interrogations of Zubaydah and Nashiri.]

He said waterboarding has not been used in five years, but it was used then because of concerns of imminent catastrophic attacks on the United States and because authorities had limited knowledge of al Qaeda.

"The circumstances are different than they were in late 2001, early 2002," Hayden said.

*Update: See the transcript below to see exactly what Hayden said. But I think it's not clear that waterboarding was only used on "three occasions" as Reuters reports. Hayden said it was used on three detainees, but didn't say exactly how many times it was used.

This information is not surprising in and of itself; these details have been reported by various outlets, citing anonymous sources. But Hayden's testimony is part of a bid to beat back a bipartisan attempt by Sens. Dianne Feinstein (D-CA), Chuck Hagel (R-NE), and others to pass legislation that would force the CIA's interrogation policy to conform with the Army Field Manual. And rather than continuing to refuse to publicly discuss these issues, the administration seems to have adopted a change in tactics. Waterboarding was used only under extraordinary circumstances, Hayden's saying. And as Attorney General Michael Mukasey disclosed last week, it's not part of the current array of interrogation techniques deemed lawful. So it's not worth legislating to prevent its use.

It's a message and rationale that fits with Mukasey's testimony before Congress last week, that you have to "balance the value of doing something against the cost of doing it." And although Hayden seems to be stressing the uniqueness of those circumstances (in and of itself highly debatable), Mukasey clearly refused last week to declare that such circumstances will never arise again. He was, however, at pains to say that every major official from Hayden to Mukasey to the President would have to sign off on its use again.

Somehow I don't think that all this is going to serve to diminish Congressional concern.

Update: You can read a transcript of Hayden's comments on this below.

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