Holder's Clear View: Waterboarding is Torture and Illegal

The New York Times Scott Shane's news analysis of attorney general-designate Eric H. Holder's congressional testimony that waterboarding constitutes torture and is illegal according to U.S. and international law and treaties, may have moved the incoming Obama administration ever so closer to becoming involved in an investigation of alleged U.S. involvement with waterboarding. With the use of waterboarding by the U.S. having already gained the status of public knowledge; numerous media and legal officials from around the world have been anxiously awaiting any form of information that might signal what Obama intends to do about the illegal acts. Concerned parties in the U.S. and abroad had to endure years of obfuscation by the Bush administration concerning waterboarding; had to listen to: "Just 14 months ago, (when) at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture." Those many interested parties may have received; "This week, at his confirmation hearing, Eric H. Holder Jr., the attorney general-designate;"... long awaited confirmation that waterboarding is defined by Holder as torture, who "did not hesitate to express a clear view. He noted that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge. Holder even added the caveat that: “We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder clearly said. “Waterboarding is torture.”" Mr. Shane reiterated the widely accepted belief that: "In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-elect Barack Obama, and he was giving an answer that almost certainly was necessary to win confirmation." Mr. Shane explains that the consequences of Holder's definition opens a Pandora's box that will require legal action because: "... his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid." Mr. Shane adds background information that: "Mr. Holder’s statement came just two days after the Defense Department official in charge of military commissions at Guantánamo Bay, Cuba, said in an interview with The Washington Post that she had refused to permit a trial for one detainee there, Mohammed al-Qahtani, because she believed he had been tortured." Mr. Shane links these remarks to explain that: "Together the statements, from a current and an incoming legal official, cover both the Central Intelligence Agency, which has acknowledged waterboarding three captured operatives of Al Qaeda, and the military’s detention program." Mr. Shane then adds that: "Legal experts across the political spectrum said the statements would make it difficult for the incoming administration to avoid a criminal investigation of torture, even as most also say a successful prosecution might well be impossible." Mr. Shane's analysis points out that: "Two obvious obstacles stand in the way of a prosecution: legal opinions from the Justice Department that declared even the harshest interrogation methods to be legal, and a provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs." In reaction to the news: "... Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said, “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.” Mr.Shane adds another opinion, that of: "Charles D. Stimson, who served as the Defense Department’s top official on detainee affairs from 2004 to 2007 and is now a senior legal fellow at the conservative Heritage Foundation, (who) said the statements “certainly will increase the pressure on Holder to mount some kind of investigation.”" Mr. Shane goes on to explain that: "In addition to domestic political pressures, the United States appears to have a legal obligation as a party to the international Convention against Torture to follow up on the torture statements. That treaty requires signatory states to conduct a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”" Mr. Shane reminds his readership that: "The Bush administration placed its interrogation operations offshore, at the American base in Cuba and at secret C.I.A. sites, and officials have sometimes argued that they were not on territory under American jurisdiction." But that assertion," Mr. Shane adds, "has been eroded by court decisions concerning the Guantánamo detention center, and it is unlikely that the Obama administration would use such a loophole to avoid the torture convention’s effect." With Bush's excuse that the torture facilities escaped U.S. jurisdiction because they did not occur on American soil now undermined by U.S. judicial proceedings, it becomes crystal clear that for the Obama administration: "There’s a moral, legal and practical obligation of the United States to follow this allegation in good faith wherever it leads,” said Juan E. Méndez, a veteran human rights lawyer who is president of the International Center for Transitional Justice in New York." Mr. Shane conjectures: "Where such an inquiry might lead is an unsettling question for departing Bush administration officials, who have long worried that aggressive policies could make them vulnerable to civil or criminal liability." And Mr. Shane asks us to consider that: "If rank-and-file interrogators are protected by the Justice Department’s assurance that their actions were legal, what about the lawyers who gave the assurances? What about the senior officials, including President Bush, who approved the use of waterboarding and other such tactics?" Mr. Shane presents his opinion of the legal conundrum that has forced Mr. Obama to tread carefully because: "Such questions are so legally daunting and politically complex that Mr. Obama has played down, while not ruling out, the possibility of a criminal investigation or a national commission to examine past policies. In an interview with ABC last Sunday, he said “my orientation’s going to be to move forward” rather than looking back." Mr. Shane remarks on the many legal obstacles put into place by the Bush administration that Mr. Obama must contend with by relating that: "In recent weeks, Mr. Bush, Vice President Cheney and other officials have strongly defended their counterterrorism methods and credited them with preventing attacks on the United States since 2001. Their implicit argument — that the Obama administration should not question policies that protected Americans — was made more explicit and personal by Michael V. Hayden, the departing C.I.A. director, in a session with reporters on Thursday." Make no mistake; the Bush administration, realizing it's precarious legal footing has initiated numerous tactical maneuvers to stop Obama's investigation in it's tracks. Bush has exhibited no compunction to freely use methods of self protection that come very close to allowing statements to be made that can be construed as threats such as Mr. Hayden's remark that was clearly intended for the incoming Obama administration: "“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I want to post all your e-mails, or, well, we’ve got this guy from the bureau who wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A. officer from taking risks on behalf of the new president’s policies." Having made his point to Obama, Hayden softened his rhetoric and added: "We have no right to ask this guy (the CIA operative) to bet his kid’s college education on who’s going to win the off-year election,” Mr. Hayden said, alluding to legal fees that such a C.I.A. officer might face." Let there be no doubt, Mr. Bush and the rest of his administration who played a role in allowing torture and waterboarding are aware of the severity of the legal issues that they created by their actions. Mr. Shane concludes by asking his readers to consider the following conversation initiated by Utah Republican Orrin G. Hatch and directed at Mr. Holder in which Senator Hatch asked, as paraphrased by Mr. Shane: "whether he (Mr. Holder) would pursue a criminal investigation of the interrogation programs." To which "Mr. Holder hedged his response, saying, “Senator, no one’s above the law, and we will follow the evidence, the facts, the law, and let that take us where it should.” Mr. Shane completed Mr. Holder's direct response to the senator from Utah: "quoting Mr. Obama, that “we don’t want to criminalize policy differences” and finally pleaded for time to study the matter." Mr. Holder concluded his remarks to Mr. Hatch in the form of an unbiased response that nevertheless signals the Obama administrations' interest in the matter by leaving the question open and indicating that an answer would be coming at a later date: "One of the things I think I’m going to have to do,” Mr. Holder said, “is to become more familiar with what happened that led to the implementation of these policies.” Becoming aware of all the facts and circumstances of torture and waterboarding and how they relate to the treaties and laws of the United States now appears to be clearly on Mr. Holder's to-do list once he is confirmed and becomes Attorney General of the United States. Let us hope that Mr. Holder takes the necessary time he needs to take the appropriate measures that leads to a complete and intensive investigation that results in legally determined convictions against members of the bush administration.