The Independent & Los Angeles Times Editorial – 2008-02-07 00:30:59
US Admits Waterboarding Terror Suspects
LONDON (February 6, 2008) — In congressional testimony, CIA director Michael Hayden became the first administration official to publicly acknowledge the agency used waterboarding on detainees following the September 11 2001, terrorist attacks.
Waterboarding involves strapping a suspect down and pouring water over his cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world.
“We used it against these three detainees because of the circumstances at the time,” Mr Hayden told the Senate Intelligence Committee.
“There was the belief that additional catastrophic attacks against the homeland were inevitable. And we had limited knowledge about al Qaida and its workings. Those two realities have changed.”
Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. Mr Hayden banned the technique in 2006, but National Intelligence Director Mike McConnell told senators during the same hearing yesterday that waterboarding remained in the CIA arsenal – so long as it had the specific consent of the president and legal approval of the attorney general.
That prompted Senator Dick Durbin, the Senate’s number two Democrat and a member of the Judiciary Committee, to call on the Justice Department to open a criminal inquiry into whether past use of waterboarding broke any law.
The Pentagon has banned its employees from using waterboarding to extract information from detainees and FBI Director Robert Mueller said his investigators did not use coercive tactics in interviewing terror suspects.
Senator Durbin, already frustrated with attorney general Michael Mukasey’s refusal last week to define waterboarding as a form of torture – as critics have – said he would block the nomination of the Justice Department’s second in command if the criminal inquiry was not opened.
It was a particularly sharp threat by Senator Durbin, who represents Illinois – the same state that US District Judge Mark Filip of Chicago, the deputy attorney general nominee, calls home.
“In light of the Justice Department’s continued non-responsiveness to Congress on the issue of torture, including your disappointing testimony on waterboarding last week, I have reluctantly concluded that placing a hold on Judge Filip’s nomination is my only recourse for eliciting timely and complete responses to important questions on torture,” Senator Durbin wrote in a letter to Mr Mukasey yesterday.
He added: “A Justice Department investigation should explore whether waterboarding was authorised and whether those who authorised it violated the law.”
Justice Department spokesman Brian Roehrkasse declined to comment except to say that the department “is reviewing the letter carefully”.
Human Rights Watch, which has been calling on the US government to outlaw waterboarding as a form of illegal torture, called Mr Hayden’s testimony “an explicit admission of criminal activity”.
Joanne Mariner, the group’s counterterrorism director, said it “gives the lie” to the administration’s claims that the CIA had not used torture. “Waterboarding is torture, and torture is a crime,” she said.
Critics say waterboarding has been outlawed under the United Nations’ Convention Against Torture, which prohibits treatment resulting in long-term physical or mental damage.
They also say it should be recognised as banned under the US 2006 Military Commissions Act, which prohibits treatment of terror suspects that is described as “cruel, inhuman and degrading”. The act, however, does not explicitly ban waterboarding by name.
During his own Senate appearance last week, Mr Mukasey refused to declare waterboarding illegal, prompting Democrats to accuse him of potentially allowing the harsh interrogation tactic to be used in the future.
From the Los Angeles Times
It’s Torture; It’s Illegal
The attorney general’s evasions on waterboarding are repugnant, and set a dangerous global precedent.
Los Angeles Times Editorial
(February 2, 2008) — The attorney general of the United States, Michael B. Mukasey, testified this week that he would consider waterboarding to be torture if it were done to him, but that he cannot say it’s always illegal.
We believe these statements are legally and morally wrong, and set a dangerous and hypocritical standard of convenience for torturers. Such repugnant equivocation will be mimicked and distorted in dark corners around the world, and will make it more likely that waterboarding and other forms of torture will be used against U.S. soldiers and civilians.
Mukasey’s arguments rely on a legal and moral relativism of the very type that conservatives typically revile. “There are some circumstances where current law would appear clearly to prohibit the use of waterboarding,” Mukasey said in a letter before his testimony to the Senate Judiciary Committee. “Other circumstances would present a far closer question.” In fact, the question isn’t remotely close.
Torture is defined as the deliberate infliction of extreme pain and suffering, physical or mental, and mock execution is universally held to be a form of torture. Waterboarding, which has been used centuries, makes the victim feel as if he or she is drowning. Whether it is done carefully enough that the victim does not drown is irrelevant, as the point is to simulate execution. After World War II, the United States prosecuted for war crimes Japanese who waterboarded American prisoners.
Mukasey’s murky testimony shows that the administration is still trying to reinvent the legal standards for torture — at least retroactively. He announced that the CIA has already stopped waterboarding, but his refusal to declare the practice illegal suggests that the administration’s top priority isn’t setting clear rules for interrogations, it’s making sure that U.S. officials who used the technique on”high-value targets” such as Khalid Sheikh Mohammed are not prosecuted. Mukasey said that what’s illegal under the Constitution is what “shocks the conscience.”
He testified that “the Detainee Treatment Act engages the standard under the Constitution, which is a shocks-the-conscience standard, which is essentially a balancing test of the value of doing something as against the cost of doing it.”
Sen. Joseph R. Biden Jr. (D-Del.) asked whether he meant the cost “in what we think is appropriate and inappropriate behavior as a civilized society?
” No, replied Mukasey, “I meant the heinousness of doing it, the cruelty of doing it balanced against … the value of what information you might get.” Translation: If waterboarding an Al Qaeda suspect who might have information about a nuclear bomb doesn’t shock the conscience of the interrogators, it might be legal.
But this is a grotesque perversion. Torture is defined by what is done to the victim, not by the usefulness of the information obtained. While some argue that torture may be morally justifiable under an implausible “ticking time bomb” scenario — and a jury might decline to convict interrogators who broke the law in such circumstances — torture must never be legal.
Defenders of “extreme interrogation techniques” for suspected terrorists claim that Americans are naive to worry about our legal standards being used against us. After all, they say, Al Qaeda does far worse than waterboard any Americans it catches.
But if we are to govern our own behavior by the logic of reciprocity, we might as well jettison the entire Geneva Convention and quit prosecuting war crimes, on the grounds that others will commit them anyway. This logic is also shortsighted in assuming that Al Qaeda is the last enemy the United States will ever fight.
Alas, the possibility of U.S. military clashes with China, Iran or another adversary can never be ruled out. Fear of what future enemies might do to us, as well as the desire to have a homeland worth protecting, have prompted dozens of U.S. generals to call for an absolute ban on waterboarding and all other forms of torture.
If Mukasey genuinely believes that the law might allow waterboarding under some circumstances, then Congress must end his legal muddle. The Senate can do so by passing the Intelligence Authorization Act, which has already passed the House. It would require the intelligence agencies to abide by the no-torture interrogation rules in the Army Field Manual, and stop the degradation of American decency.
Copyright 2008 Los Angeles Times
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