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.

Conyers Begins to Conduct an Investigation of the Bush Administration?

Writing in the Washington Post, Chairman of the House Judiciary Committee, John Conyers Jr. comments in broad terms concerning his possible decision to investigate the "abuses and excesses" of the Bush administration by stating that: "This week, I released "Reining in the Imperial Presidency," a 486-page report detailing the abuses and excesses of the Bush administration and recommending steps to address them. Arthur Schlesinger Jr. popularized the term "imperial presidency" in the 1970s to describe an executive who had assumed more power than the Constitution allows and circumvented the checks and balances fundamental to our three-branch system of government. Until recently, the Nixon administration seemed to represent a singular embodiment of the idea. Unfortunately, it is clear that the threat of the imperial presidency lives on and, indeed, reached new heights under George W. Bush." Chairman Conyers continues to explain: "As this report documents, there was the administration's contrived drive to a needless war of aggression with Iraq, based on manipulated intelligence and facts that were "fixed around the policy." There was its politicization of the Justice Department; unconscionable and possibly illegal policies on detention, interrogation and extraordinary rendition; warrantless wiretaps of American citizens; the ravaging of our regulatory system and the use of signing statements to override the laws of the land; and the intimidation and silencing of critics and whistle-blowers who dared to tell fellow citizens what was being done in their name. And all of this was hidden behind an unprecedented veil of secrecy and outlandish claims of privilege." Chairman Conyer's openly admits that he: "... understand(s) that many feel we should just move on. They worry that addressing these actions by the Bush administration will divert precious energy from the serious challenges facing our nation. I understand the power of that impulse. Indeed, I want to move on as well -- there are so many things that I would rather work on than further review of Bush's presidency. But in my view it would not be responsible to start our journey forward without first knowing exactly where we are." Chairman Conyer's provides a sense of is justification for the further review of Bush's presidency" by stating that: "We cannot rebuild the appropriate balance between the branches of government without fully understanding how that relationship has been distorted. Likewise, we cannot set an appropriate baseline for future presidential conduct without documenting and correcting the presidential excesses that have just occurred. After the Nixon imperial presidency, critical reviews such as the Church and Pike committees led to fundamental reforms that have served our nation well. Comparable steps are needed to begin the process of reining in the legacy of the Bush imperial presidency." Chairman Conyer's establishes his reasoning for a review of the Bush administration by citing three "crucial" points:
"First, Congress should continue to pursue its document requests and subpoenas that were stonewalled under President Bush. Doing so will make clear that no executive can forever hide its misdeeds from the public.
"Second, Congress should create an independent blue-ribbon panel or similar body to investigate a host of previously unreviewable activities of the Bush administration, including its detention, interrogation and surveillance programs. Only by chronicling and confronting the past in a comprehensive, bipartisan fashion can we reclaim our moral authority and establish a credible path forward to meet the complex challenges of a post-Sept. 11 world.
"Third, the new administration should conduct an independent criminal probe into whether any laws were broken in connection with these activities. Just this week, in the pages of this newspaper, a Guantanamo Bay official acknowledged that a suspect there had been "tortured" -- her exact word -- in apparent violation of the law. The law is the law, and, if criminal conduct occurred, those responsible -- particularly those who ordered and approved the violations -- must be held accountable.
Chairman Conyers adds to his expressed concerns by providing the American people with his belief that: "Some day, there is bound to be another national security crisis in America. A future president will face the same fear and uncertainty that we did after Sept. 11, 2001, and will feel the same temptation to believe that the ends justify the means -- temptation that drew our nation over to the "dark side" under the leadership of President Bush and Vice President Cheney. If those temptations are to be resisted -- if we are to face new threats in a manner that keeps faith with our values and strengthens rather than diminishes our authority around the world -- we must fully learn the lessons of our recent past." I honor Chairman Conyer's legally framed arguments. Investigating a president or his administration are not tasks that any member of the federal government, especially one with such a distinguished record as belongs to Chairman Conyers should view with any sense of zeal or misplaced partisan contempt. That submission to temptations greater than those granted by an oath of office was unfortunately fully demonstrated by a vindictive and out of control, partisan Republican House of Representatives just a few years ago and was directed against then President Clinton on charges that bear no relationship to those expressed so eloquently by Chairman Conyers in his thoughts and statements listed above in this post. While it is a decision of considerable importance that Chairman Conyers must make; it is a decision that his oath of office requires him to make. How he decides to proceed will soon be known; and I fully believe he realizes the enormous consequences of his actions. In accord with the three "crucial" points he addressed, I believe he has no other choice than to proceed with an investigation into the "the abuses and excesses of the Bush administration and recommending steps to address them." And I also believe with Chairman Conyers assessment that: "the new administration should conduct an independent criminal probe into whether any laws were broken in connection with these activities."