Senators want to know if waterboard authorizers are criminals Nick Juliano

Published: Wednesday February 13, 2008



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Print This Email This Two Senate Judiciary Committee Democrats are requesting that the Justice Department's internal watchdog investigate whether Bush Administration officials who authorized waterboarding are guilty of any crimes themselves. Sens. Richard Durbin (D-IL) and Sheldon Whitehouse's (D-RI) request comes as the CIA and White House finally admitted the use of waterboarding, and as Attorney General Michael Mukasey is standing with the Bush administration in refusing to open an investigation. The senators say that Mukasey's refusal on grounds that the Justice Department had authorized the simulated drowning technique did not answer whether the authorizations themselves were legal. In a letter sent Tuesday to the Justice Department's Inpsector General and Counsel for Professional Responsibility the two wrote: Waterboarding has a sordid history in the annals of torture by repressive regimes, from the Spanish Inquisition to the Khmer Rouge. The United States has always repudiated waterboarding as a form of torture and prosecuted it as a war crime. The Judge Advocates General, the highest-ranking attorneys in each of the four military services, have stated unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.



Yet, despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials. As you know, a similar investigation is underway regarding Justice Department officials who advised the National Security Agency that its warrantless surveillance program is lawful.



The Bush administration's long delayed admission of engaging in waterboarding comes as it works to prosecute suspected 9/11 conspirators before a military tribunal.



Although Mukasey and others in the administration insist waterboarding is not currently used by the CIA or military, the White House view is that President Bush could reauthorize the practice if he saw fit. Congress failed last year in its attempt to force the CIA to comply with the US Army Field Manual's standards on interrogation, which prohibits waterboarding.



In an interview with the BBC Tuesday, Supreme Court Justice Antonin Scalia defended the government's right to engage in severe interrogation techniques and detain suspected terrorists indefinitely.



The White House and CIA have acknowledged waterboarding three detainees in 2003, including alleged 9/11 matermind Khalid Shaikh Mohammed; however recent developments have brought into question its legality and Mukasey has refused to make a straightforward determination of its legality or illegality, the Washington Post reports.



The government's defense of the waterboarding episodes, laid out in congressional testimony and administration statements over the past two weeks, relies on a complex legal argument that many scholars and human rights advocates say is at odds with settled law barring conduct that amounts to torture, at any time or for any reason. It also leaves open the possibility that, under the right conditions, the CIA could decide to use the tactic again.

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In Senate testimony last month, for example, Mukasey emphasized that while waterboarding might be prohibited under some circumstances, it might be allowed if it did not "shock the conscience." That phrase was coined by the Supreme Court in a 1952 ruling against police brutality, which provoked criticism because it imposed an inherently subjective due-process standard. But it was implicitly embraced in legislation approved last year.



Mukasey described the matter as "a balancing test of the value of doing something as against the cost of doing it," and refused lawmakers' demands that he render an absolute verdict on its legality. Fratto, in remarks to reporters last week, amplified the point by asserting that waterboarding could be legal if the government believed it was under imminent threat.



But many legal experts say that such a "sliding scale" approach applies only to proscriptions against cruel, inhuman or degrading treatment, which ranks a step below torture in U.S. and international human rights law. Philip B. Heymann, who was a deputy attorney general in the Clinton administration and now teaches at Harvard Law School, said the Bush administration is "trying to act as if they have wiggle room even if they don't."



"There's a plausible argument that there's a sliding scale, but only if you have arrived at the position that it's not torture," Heymann said. "There is no sliding scale for torture."



Sens. Durbin and Whitehouse asked the Justice Department IG to investigate:



* Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful? Did these officials consult with government attorneys who are experts in the relevant legal standards, e.g. Judge Advocates General who are experts in the Geneva Conventions? Was it reasonable to rely on standards found in areas such as health care reimbursement law in evaluating interrogation techniques?



* Were Justice Department officials who advised the CIA that waterboarding is lawful insulated from outside pressure to reach a particular conclusion? What role did White House and/or CIA officials play in deliberations about the lawfulness of waterboarding?



The senators said they wanted the results of such an investigation to be open to the public, and they requested a response from the IG in one week.



