US attorney general rejects investigation into use of waterboarding

By Joe Kay

9 February 2008

Original Article

Two days after the Bush administration officially acknowledged
for the first time its use of waterboarding on detainees held
by the CIA, Attorney General Michael Mukasey rejected any criminal
investigation into the use of the torture method. The statements
come amidst fresh evidence that the government obstructed justice
by destroying videotapes of waterboarding despite ongoing relevant
court cases.

Mukasey’s testimony on Thursday was part of a series of
statements by administration officials that amount to an open
admission of criminality. Waterboarding—which involves pouring
water over a prisoner’s head to produce the sensation of
drowning—is internationally recognized as a form of torture
and has been prosecuted by the US as torture in the past.

The Bush administration is now developing the argument that
while the technique may be illegal under current US law, it was
not illegal in 2002 and 2003, when it was used. According to administration
officials, it was legal at the time because of the “circumstances”
prevailing then, and that this legality was based on secret internal
administration memos that the administration refuses to release.
At the same time, the administration is leaving open the possibility
that the president could legally order waterboarding in the future.

On Tuesday, CIA Director Michael Hayden confirmed the use of
waterboarding on three individuals: Khalid Sheikh Mohammad, Abu
Zubaydah and Abd al-Rahim al-Nashiri, all alleged members of Al
Qaeda. Videotapes of the interrogation of Zubaydah and al-Nashiri
were destroyed in November 2005, a fact acknowledged by Hayden
last year.

Asked by House Judiciary Committee Chairman John Conyers if
Mukasey would open a criminal investigation into the legality
of waterboarding now that it had been confirmed, Mukasey replied,
“No, I am not.”

Mukasey said he could not subject individuals who had carried
out waterboarding to a criminal investigation because they had
acted pursuant to an opinion of the Justice Department itself.
“Essentially, it would tell people, you rely on a Justice
Department opinion as part of a program, then you will be subject
to criminal investigation when and if the tenure of the person
who wrote the opinion changes or, indeed, the political winds
change.”

“That would mean that the same department that authorized
the program would now consider prosecuting somebody who followed
that advice,” Mukasey repeated.

Mukasey again refused to release the opinions developed in
2001 and 2002 by the department’s Office of Legal Counsel,
saying that they remained classified. He also refused to present
them before Congress, even in closed session. The opinions were
part of a series of memoranda prepared by administration lawyers
shortly after September 11 to justify unprecedented executive
powers on the pretext of the “war on terror.”

The lawyers working on these memos included then-Deputy Assistant
Attorney General John Yoo, Vice President Dick Cheney’s legal
counsel David Addington, and White House Counsel and later Attorney
General Alberto Gonzales. Among the memos prepared at the time
was the infamous “torture memo,” which argued that the
president may have a constitutional right to torture regardless
of US and international law. While this memo was subsequently
leaked to the public, a separate memo on waterboarding and other
specific methods is still secret.

Mukasey’s basic argument is that because Justice Department
lawyers determined in secret that a form of torture is in fact
legal, those who carried out the torture are immune from criminal
investigation by the Justice Department. None of the congressmen
present suggested that the Justice Department open an investigation
into the decisions of its own lawyers.

Mukasey made a similar argument in response to a question from
Democratic Representative Jerrold Nadler. Nadler asked if the
Justice Department would appoint a special prosecutor to investigate
whether the administration violated the law in ordering warrantless
domestic spying in violation of the Foreign Intelligence Surveillance
Act (FISA). Mukasey said he would not do this because there existed
an opinion of the Justice Department finding that surveillance
was legal.

The central issue is that all the memoranda drafted at the
behest of the Bush administration were designed to justify a criminal
policy. For all the hand-wringing of Democratic congressmen, it
is quite obvious that the Bush administration will never investigate
the legality of its own policy. The criminal investigation announced
in January into the destruction of the videotapes was designed
from the outset to be a whitewash.

From a constitutional standpoint, the response of the opposition
party in such a situation would be a call for impeachment. However,
even before the Democrats took control of Congress last January,
this option had already been ruled out by the leading figures
in the party. Democrats have also shelved the few congressional
investigations launched after the revelation of the videotapes’
destruction.

The position of the Democratic Party is explained by the fact
that the party has been complicit from the very beginning in the
policy of torture. The Bush administration is relying on this
complicity as its shifts to a position of more openly and aggressively
defending waterboarding.

During Mukasey’s testimony on Thursday, Republicans on
the committee made a point of highlighting comments by Democrats
to counteract criticisms of the CIA program.

Republican Representative Daniel Lungren (Calif.) cited Democratic
Senator Charles Schumer’s statement, made in 2004, that it
was necessary to have “balance” in the discussion on
torture. “I think there are probably very few people in this
room or in America who would say that torture should never, ever
be used, particularly if thousands of lives are at stake,”
Schumer said at the time.

Schumer went on to say, “It’s easy to sit back in
the armchair and say that torture can never be used. But when
you’re in the foxhole, it’s very different.” The
senator was a key figure in ensuring the confirmation of Mukasey
as attorney general last year, despite his refusal to condemn
waterboarding as torture.

The administration’s argument is essentially the same
as Schumer’s, though the government still officially denies
that what it has done can be classified as “torture.”
The “war on terrorism” is being used as a pretext for
violating domestic and international law. On Thursday, Cheney
defended the CIA program, saying that it had “foiled attacks
against the Untied States, information that has saved thousands
of lives.”

Leading Democratic Party officials, including the current speaker
of the House, Nancy Pelosi, were given a detailed briefing of
the CIA’s torture program in 2002. Democratic congressmen
were informed in 2003 of the existence of videotapes depicting
waterboarding and were told of plans by the CIA to destroy them.
Nothing was done to inform the American people of this evidence,
and no objections were raised to the practice of waterboarding.

The impotence of the Democratic Party and the liberal establishment
was highlighted by an editorial in the Washington Post published
on Friday. Entitled, “A President Who Tortured,” the
editorial begins by noting that the official admission of the
use of waterboarding “puts to rest any doubt about whether
President Bush authorized torture.”

The Post reviewed the evidence demonstrating that the
president had committed one of the gravest breaches of international
law, and noted that administration officials left open the possibility
that waterboarding would be used in the future. The Post then
meekly called on Congress to pass legislation requiring that the
CIA follow the Army Field Manual on interrogations. If Bush vetoes
this legislation, the editors concluded, “It will
be but another stain on his legacy.”

In a related development, a federal court released documents
showing that the judge in the case of Zacarias Moussaoui had requested
information on the interrogation of Abu Zubaydah as late as November
29, 2005—around the time that the CIA destroyed the videotapes.
The judge in the case, Leoni Brinkema of the US District Court
for the Eastern District of Virginia, was never told of the videotapes,
before or after they were destroyed.

A New York Times article published February 7 reports
that one document “states that on Nov. 29, 2005, government
lawyers produced documents, including ‘intelligence summaries,’
about Abu Zubaydah but never told the court about the existence
or destruction of the tapes.”

The destruction of the videotapes was an act of obstruction

of justice in relation to the Moussaoui case, and there were other
court cases still pending at the time. Another judge had ordered
the CIA to turn over or account for all documents related to the
interrogation of prisoners. The government also withheld the videotapes
from the 9/11 Commission, despite requests from commission members.

Another document released this week indicates that prosecutors
in the case may have been informed of the destruction of the tapes
at least as early as February 2006. A letter from Chuck Rosenberg,
an attorney for the Eastern District of Virginia, reported that
one of the lawyers “may have been told in late February or
early March 2006” of the videotapes, but that he “does
not recall being told this information.”

The revelations regarding the judge’s requests in the
Moussaoui case directly contradict statements made by Hayden last
year when he first revealed that the tapes had been destroyed.
Hayden said that the CIA made the move “only after it was
determined [the videotapes] were no longer of intelligence value
and not relevant to any internal, legislative or judicial inquiries.”