[Ppnews] We Tortured and We'd Do It Again

[Political Prisoner News]

We Tortured and We'd Do It Again
http://www.washingtonpost.com/wp-dyn/content/blog/2008/02/06/BL2008020602244.html?hpid=opinionsbox1

By Dan Froomkin
Special to washingtonpost.com
Wednesday, February 6, 2008; 12:54 PM

After years of 
<http://www.google.com/search?q=froomkin+torture+site%3Awashingtonpost.com>dodging 
and dissembling, the Bush administration today boldly embraced an 
interrogation tactic that's been an iconic and almost universally 
condemned form of torture since the Spanish Inquisition.

President Bush would authorize waterboarding future terrorism 
suspects if certain criteria are met, White House spokesman Tony 
Fratto said this morning, one day after the director of the CIA for 
the first time publicly acknowledged his agency's use of the tactic, 
which generally involves strapping a prisoner to a board, covering 
his face or mouth with a cloth, and pouring water over his face to 
create the sensation of drowning.

<http://news.yahoo.com/s/afp/20080206/pl_afp/usintelligencepoliticswhouse_080206161956>Olivier 
Knox writes for AFP: "The United States may use waterboarding to 
question terrorism suspects in the future, the White House said 
Wednesday, rejecting the widely held belief that the practice amounts 
to torture.

"'It will depend upon circumstances,' spokesman Tony Fratto said, 
adding 'the belief that an attack might be imminent, that could be a 
circumstance that you would definitely want to consider.'

"'The president will listen to the considered judgment of the 
professionals in the intelligence community and the judgment of the 
attorney general in terms of the legal consequences of employing a 
particular technique,' he said.

"His comments came one day after CIA director Michael Hayden for the 
first time admitted publicly that the agency had used 
'waterboarding,' a practice that amounts to controlled drowning, to 
question three top al-Qaeda detainees nearly five years ago.

"After years of insisting that disclosing any specific interrogation 
techniques would harm US national security, US President George W. 
Bush 'authorized General Hayden to say what he said,' Fratto told reporters.

"'The cumulative impact of public discussion about that technique led 
to a consensus that an exception was warranted in this case,' the 
spokesman said."

Knox writes that Fratto "rejected charges that the tactics the 
Central Intelligence Agency calls 'enhanced interrogation techniques' 
amount to torture.

"'Torture is illegal. Every enhanced technique that has been used by 
the Central Intelligence Agency through this program was brought to 
the Department of Justice and they made a determination that its use 
under specific circumstances and with safeguards was lawful,' he said."

And here's the kicker: "Asked whether the White House's reasoning was 
that torture is illegal, the attorney general has certified that the 
interrogation practices are legal, therefore those practices are not 
torture, Fratto replied: 'Sure.'"
Yesterday's Testimony

Hayden yesterday told the Senate Intelligence Committee: "Let me make 
it very clear and to state so officially in front of this committee 
that waterboarding has been used on only three detainees. It was used 
on Khalid Sheikh Mohammed. It was used on Abu Zubaydah. And it was 
used on [Abd al-Rahim al-]Nashiri."

Hayden said the CIA had not used the technique for almost five years. 
"We used it against these three high-value detainees because of the 
circumstances of the time. Very critical to those circumstances was 
the belief that additional catastrophic attacks against the homeland 
were imminent.

"In addition to that, my agency and our community writ large had 
limited knowledge about Al Qaida and its workings. Those two 
realities have changed."

But National Intelligence Director Mike McConnell told senators there 
was no reason waterboarding couldn't be used again.

"If there was a reason to use such a technique, you would have to 
make a judgment on the circumstances and the situation regarding the 
specifics of the event," McConnell said.

"And if such a desire was generated on the part of -- in the interest 
of protecting the nation, General Hayden would have to, first of all, 
have a discussion with me, and we would have a dialogue about whether 
we should go forward and seek legal opinion.

"Once we agreed to that, assuming we did, we would go to the attorney 
general, who'd make a ruling on the specifics of the situation. At 
that point, it would be taken to the president for a decision, and if 
a decision was taken, then the appropriate committees of the Congress 
would be so notified."
Durbin's Reaction

After Hayden's testimony yesterday, a prominent senator called on the 
Justice Department to open a criminal inquiry that could extend all 
the way to the White House.

Sen. Dick Durbin fired off an 
<http://durbin.senate.gov/showRelease.cfm?releaseId=292048>angry 
letter to Attorney General Michael Mukasey: "In light of your 
<http://ap.google.com/article/ALeqM5h0HzC22rsazNY3EH2NhxMtOE-1agD8UGF31G2>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. You suggested during last week's hearing that 
you would not investigate these incidents because waterboarding was 
authorized by the Administration: 'It's a question of telling agents 
out there that we are investigating the CIA based on speculation 
about what happened and whether they got proper authorizations.' 
Needless to say, a Justice Department investigation should explore 
whether waterboarding was authorized and whether those who authorized 
it violated the law."

Durbin vowed to block the nomination of the Justice Department's No. 
2 official until he gets some answers.
Testimony Coverage

<http://online.wsj.com/article/SB120222818551444359.html?mod=politics_primary_hs>Siobhan 
Gorman writes in the Wall Street Journal (subscription required): "In 
a wide-ranging defense of some of the Bush administration's most 
controversial antiterrorism policies, top officials yesterday 
acknowledged for the first time that the Central Intelligence Agency 
has used waterboarding and named three terrorist suspects who 
underwent the harsh interrogation technique.

"The CIA said it doesn't use the tactic anymore, but officials left 
open the option of reinstating it. . . .

"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."

<http://www.washingtonpost.com/wp-dyn/content/article/2008/02/05/AR2008020502764.html>Lara 
Jakes Jordan writes for the Associated Press: "Senate Democrats 
demanded a criminal investigation into waterboarding by government 
interrogators Tuesday after the Bush administration acknowledged for 
the first time that the tactic was used on three terror suspects. . . .

"Human Rights Watch, which has been calling on the government to 
outlaw waterboarding as a form of illegal torture, called Hayden's 
testimony 'an explicit admission of criminal activity.'

"Joanne Mariner, the group's counterterrorism director, said Hayden's 
testimony 'gives the lie' to the administration's claims that the CIA 
has not used torture. 'Waterboarding is torture, and torture is a 
crime,' she said.

"Critics say waterboarding has been outlawed under the U.N.'s 
Convention Against Torture, which prohibits treatment resulting in 
long-term physical or mental damage. They also say it should be 
recognized as banned under the U.S. 2006 Military Commissions Act, 
which prohibits treatment of terror suspects that is described as 
'cruel, inhuman and degrading.' The act, however, does not explicitly 
prohibit waterboarding by name."

<http://www.washingtonpost.com/wp-dyn/content/article/2008/02/05/AR2008020502979.html>Walter 
Pincus writes in The Washington Post: "After the hearing, Hayden told 
reporters that the information obtained from those detainees amounted 
to a quarter of all the human intelligence the CIA gained about the 
terrorist organization between 2002 and 2006.

"'We would not have done it if it were not that valuable,' Hayden said."

<http://www.reuters.com/article/latestCrisis/idUSN05191813>Randall 
Mikkelsen writes for Reuters: "From the time of their capture in 2002 
and 2003 until they were delivered to Guantanamo Bay prison in 2006, 
the two suspects accounted for one-fourth of the human intelligence 
reports on al Qaeda, Hayden said.

"Some analysts have questioned Mohammed's credibility under 
interrogation. But Hayden said most of the information was reliable 
and helped lead to other al Qaeda suspects."

<http://www.nytimes.com/2008/02/06/washington/06intel.html?ex=1360040400&en=32507d82884bcf9a&ei=5090&partner=rssuserland&emc=rss>Mark 
Mazzetti writes in the New York Times: "The C.I.A. is the only agency 
permitted under law to use interrogation methods more aggressive than 
those used by the American military. Senate Democrats sought to use 
the hearing to exploit divisions about those techniques.

"Both Robert S. Mueller III, director of the Federal Bureau of 
Investigation, and Lt. Gen. Michael D. Maples, director of the 
Defense Intelligence Agency, told lawmakers that their agencies had 
successfully obtained valuable intelligence from terrorism suspects 
without using what Mr. Mueller called the 'coercive' methods of the C.I.A.

"But General Hayden bristled when asked about Congressional attempts 
to mandate that C.I.A. interrogators be required to use the more 
limited set of interrogation methods contained in the Army Field 
Manual, which is used by military interrogators.

"'It would make no more sense to apply the Army's field manual to 
C.I.A.,' General Hayden said, 'than it would to take the Army Field 
Manual on grooming and apply it to my agency, or the Army Field 
Manual on recruiting and apply it to my agency. Or, for that matter, 
the Army Field Manual on sexual orientation and apply it to my agency.'"

<http://www.latimes.com/news/nationworld/nation/la-na-terror6feb06,0,3257655.story>Greg 
Miller writes in the Los Angeles Times: "National Intelligence 
Director J. Michael McConnell distanced himself from recent comments 
in a magazine article indicating he considered waterboarding a form 
of torture. The comments were taken out of context, he said.

"McConnell acknowledged the severity of the technique, saying that 
'waterboarding, taken to its extreme, could be death.' But there are 
scenarios in which it might be employed, he said."

<http://tpmmuckraker.talkingpointsmemo.com/2008/02/mcconnell_and_waterboarding.php>Paul 
Kiel of TPM Muckraker compares McConnell's statements yesterday with 
what he told the New Yorker's 
<http://www.newyorker.com/reporting/2008/01/21/080121fa_fact_wright>Lawrence 
Wright.

Yale Law Professor and blogger 
<http://balkin.blogspot.com/2008/02/oh-and-by-way-we-tortured-people.html>Jack 
Balkin interprets yesterday's testimony: "Translation: we 
waterboarded, and we may want to do it again, and wouldn't like to 
break the law, so don't prohibit it."

Balkin then explains: "The problem is that waterboarding is already 
in violation of the anti-torture statute and the war crimes statute. 
The only reason the Administration won't admit that is because of 
self-serving OLC opinions that twisted the law precisely to avoid 
concluding that the Administration engaged in torture and war crimes. . . .

"Attorney General Mukasey's argument last week that waterboarding is 
not torture is based on OLC opinions that 
<http://balkin.blogspot.com/2006/10/yes-its-no-brainer-waterboarding-is.html>willfully 
distort statutory language. They argue that for something to be 
torture, it is not enough that it is intended to inflict severe 
physical or mental suffering, as the torture statute provides; it 
must also inflict prolonged physical suffering, a requirement absent 
from the text. Thus, under the OLC's reasoning, not only is 
waterboarding not torture (because it causes suffering so severe no 
one can stand it for very long), electric shocks to the genitals are 
not torture.

"This additional requirement is made up out of whole cloth, and it 
has been constructed precisely to conclude that waterboarding is not 
torture. This is not an interpretation on which reasonable minds can 
differ; it is an unreasonable interpretation that has been chosen 
precisely to absolve the executive of criminal responsibility and 
accountability under the torture statute (and the war crimes statute, 
even after it was limited by the Military Commissions Act of 2006). 
The executive has acted as a judge in its own case in a way that 
absolves it of having to obey the law. . . .

"It is worth recalling that at his recent hearings Attorney General 
Mukasey refused to explain the legal basis for why the CIA 
interrogation techniques (including waterboarding) are not illegal, 
arguing that the legal explanations themselves are classified, so 
that no one can know what the laws are."




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