"The real reason why Judge Mukasey cannot say that waterboarding is illegal..."

[ProSense]

Thursday, November 01, 2007

Judge Mukasey and the Groucho Marx Principle

JB

This New York Times article suggests that Judge Mukasey cannot announce that waterboarding is illegal at his confirmation hearings for Attorney General because of concern that this would lead to criminal prosecutions and civil suits against CIA operatives who performed interrogations.

Do not believe it.

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law.

To be sure, if Bush Administration officials travel abroad, they may be indicted and tried for war crimes. But if so, that is already true, and Judge Mukasey's statement would not trigger liability: it would merely be additional evidence-- if any were needed-- that waterboarding is a war crime.

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney's terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

<...>

Which places any Attorney General nominee in a difficult bind: The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.

"more

(emphasis added)

And if CIA operatives acted in good faith..."

Thing is, I'm not sure waterboarding was part of the deal.

Saturday, September 23, 2006

Clarification of What the War Crimes Amendment Would (Not) "Authorize"

Marty Lederman

<…>

The lead-in sentence to this quotation, however, also characterizes me as saying that "the bill continued to allow the harsh treatment of detainees by the Central Intelligence Agency." This isn't a direct quote, and I certainly did not mean to convey any such thing. As longtime readers here know, my unequivocal view has been and continues to be that the CIA techniques such as Cold Cell, Long Time Standing, threats, stress positions, and waterboarding, are currently unlawful, because, among other things, they are "cruel treatment" and (sometimes) "torture" that Common Article 3 prohibits. Because the bill does not purport to supersede or override our obligations under Common Article 3 -- indeed, by everyone's lights, that indisputably was the principal concession that the White House made to the Senators – those techniques would remain unlawful, even if the bill should be enacted. (I'm probably guilty of imprecision, and hyperbole, that might have led some readers to think otherwise, such as in my provocative the other night: "U.S. to be First Nation to Authorize Violations of Geneva." If so, my apologies. I think it is clear that the U.S. will be the first nation to formally "authorize" Geneva violations, when the Bush Administration construes this bill (if enacted) to permit the CIA techniques. But it would remain the case that the Geneva Conventions do, in fact, prohibit such techniques, which means they should continue to be unlawful.)

The serious problem with the bill, , is that it would define "cruel treatment" for purposes of the War Crimes Act in a confusing and inadequate manner that could readily be construed not to cover some or many of the CIA techniques. More to the point, numerous Bush officials' statements over the past 48 hours indicate that the Administration has already construed the definition in exactly that way, and that, in its view, this means not only that the CIA techniques would not be "war crimes," but also that they would not be "cruel treatment" under Common Article 3 by virtue of that statutory definition.

This conclusion demonstrates the terrible mischief of this "compromise," but it's substantively wrong. I don't know whether and to what extent McCain, et al., intended the definition of "cruel treatment" in the proposed War Crimes Act amendment to cover the CIA techniques. If McCain and other Senators do think such techniques are covered by that language, it would behoove them to say so publicly, and to explain how the proposed WCA should be construed to cover such techniques, so as to counter the Administration's manifest contrary reading. Here's :

If Senators McCain, et al., are truly serious about bringing a halt to interrogation techniques that would place us in violation of the Geneva Conventions, then at the very least they must do this one thing: Amend the definition of "serious physical pain or suffering" to make certain that it does, in fact, encompass the physical suffering that is attendant to the cruel treatment prohibited by Common Article 3, including that caused by the CIA's "alternative" techniques.

If the Senators do not do so, it seems clear from what we've already seen that the Bush Administration lawyers will instruct the CIA that such techniques are not "cruel treatment" (even though under anyone's ordinary understanding of that term, they would be).

more

The Bush admin does not torture:

PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law.
We do not torture.

Perino: We Don't Torture Because We Say We Don't Torture

‘We Do Not Torture’

CIA Operatives Sign Up for Torture Insurance

[havocmom]

1. New twist on the 'protect the CHILDREN' excuse / propaganda method

They sure didn't worry about protecting any CIA assets when the outed Plame.

[Trillo]

2. I thought the excerpt in another DU thread was informative:

Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.
http://www.nytimes.com/2007/11/01/washington/01mukasey.html?ref=washington
via:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3050236

It's pretty clear that waterboarding is torture, and that attempts of the MSM to characterize it by saying that it involved a cloth or plastic over the nose and mouth are simple propagandistic manipulations to keep the truth from getting out.

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and Guantanamo. No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets.

http://www.tpmmuckraker.com/archives/004617.php
via:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x2175594

[lyonn]

6. Now that sounds like the kind of torture George could get into! nt

[ProSense]

3. Kick! n/t

[wiggs]

4. Big mistake for dems to

focus narrowly on the issue of waterboarding. Big, often-repeated mistake to put all eggs in one basket and take a stand on a narrow, gray aspect of the debate.

There are other aspects of this administration and the office of USAG that deserve discussion and public debate. What about abuse of presidential power? Executive priviledge? Politicization of the Justice Department? Rendition? NSA spying? Going after Hatch Act violations? Political prosecutions of dems and Rove involvement? District Attorney firings for political reasons? The waters are easily muddied on waterboarding, as is being done.

Not only would you gain more insight on the nominee by talking about these things, they represent an opportunity to talk about administration misdeeds. You can't separate any current policy or personnel decision from this administration's past. Context must be provided.

Also.....When I say "mistake" I'm being generous....because I've seen the "strategy" of focusing on one smaller aspect of the larger debate pursued unsuccessfully so many times that I am tempted to believe it is a deliberate way of looking like you're providing oversight while actually not. If they wanted to pull out the big guns on this process they certainly could.

[lyonn]

7. The list is sooo long, Congress doesn't have time

or so it seems. I'm all for shutting down Congress until we can get the message/story out there for all to understand. Executive privilege is Huge. It is the foundation for all the abuses of our rights since GW took over.

[lyonn]

5. No more BS - Mukasy has got to go

We are better off with no AG than anything bush comes up with. Let's see how our Dem leaders handle this? No more excuses for the likes of Alito.

[Richard Steele]

8. BushCabal tortures people; Mukasey tortures logic. K&R