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Wednesday, 6 February 2008
© 2008 Independent News and Media Limited
Senate Democrats demanded a criminal investigation into waterboarding by government interrogators after the Bush administration admitted for the first time that the tactic was used on three terror suspects.
In congressional testimony, CIA director Michael Hayden became the first administration official to publicly acknowledge the agency used waterboarding on detainees following the September 11 2001, terrorist attacks.
Waterboarding involves strapping a suspect down and pouring water over his cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world.
“We used it against these three detainees because of the circumstances at the time,” Mr Hayden told the Senate Intelligence Committee.
“There was the belief that additional catastrophic attacks against the homeland were inevitable. And we had limited knowledge about al Qaida and its workings. Those two realities have changed.”
Hayden said Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. Mr Hayden banned the technique in 2006, but National Intelligence Director Mike McConnell told senators during the same hearing yesterday that waterboarding remained in the CIA arsenal – so long as it had the specific consent of the president and legal approval of the attorney general.
That prompted Senator Dick Durbin, the Senate’s number two Democrat and a member of the Judiciary Committee, to call on the Justice Department to open a criminal inquiry into whether past use of waterboarding broke any law.
The Pentagon has banned its employees from using waterboarding to extract information from detainees and FBI Director Robert Mueller said his investigators did not use coercive tactics in interviewing terror suspects.
Senator Durbin, already frustrated with attorney general Michael Mukasey’s refusal last week to define waterboarding as a form of torture – as critics have – said he would block the nomination of the Justice Department’s second in command if the criminal inquiry was not opened.
It was a particularly sharp threat by Senator Durbin, who represents Illinois – the same state that US District Judge Mark Filip of Chicago, the deputy attorney general nominee, calls home.
“In light of the Justice Department’s continued non-responsiveness to Congress on the issue of torture, including your disappointing testimony on waterboarding last week, I have reluctantly concluded that placing a hold on Judge Filip’s nomination is my only recourse for eliciting timely and complete responses to important questions on torture,” Senator Durbin wrote in a letter to Mr Mukasey yesterday.
He added: “A Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law.”
Justice Department spokesman Brian Roehrkasse declined to comment except to say that the department “is reviewing the letter carefully”.
Human Rights Watch, which has been calling on the US government to outlaw waterboarding as a form of illegal torture, called Mr Hayden’s testimony “an explicit admission of criminal activity”.
Joanne Mariner, the group’s counterterrorism director, said it “gives the lie” to the administration’s claims that the CIA had not used torture. “Waterboarding is torture, and torture is a crime,” she said.
Critics say waterboarding has been outlawed under the United Nations’ Convention Against Torture, which prohibits treatment resulting in long-term physical or mental damage.
They also say it should be recognised as banned under the US 2006 Military Commissions Act, which prohibits treatment of terror suspects that is described as “cruel, inhuman and degrading”. The act, however, does not explicitly ban waterboarding by name.
During his own Senate appearance last week, Mr Mukasey refused to declare waterboarding illegal, prompting Democrats to accuse him of potentially allowing the harsh interrogation tactic to be used in the future.
http://www.independent.co.uk/news/world/americas/us-admits-waterboarding-terror-suspects-778808.html
Now that George Bush and Michael Hayden have publicly confessed to government waterboarding in a press conference on February 6, 2008, and in testimony before Congress on February 5, 2008, you may find the following information useful:
The law review article referenced below (available at no cost at: http://www.law.utah.edu/_webfiles/ULRarticles/150/150.pdf ) makes clear that waterboarding is torture and is a crime and a war crime punishable under a number of treaties to which the United States is a party and several U.S. statutes.
The article also explains that there is no defense available due to either (1) prior legal advice, or (2) circumstances (including, without limitation, terrorist acts – see citations in Footnotes 21 and 25 in the article), contrary to the claims of Bush and Hayden.
The law review article (see pages 359 to 374) also establishes that under a number of treaties to which the United States is a party, the U.S. has an obligation to initiate an official investigation regarding confessed acts of torture. For example, the 1984 U.N. Convention Against Torture, (1465 UNTS 85), Article 12 reads as follows:
“Each State Party shall ensure that its competent authorities proceed to 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.†(NOTE: The article also explains why “territory under its jurisdiction†includes GITMO and all DOD and CIA secret detention sites for the United States.)
The following case, among others, has held that waterboarding is torture:
In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F. Supp. 1460, 1463 (District of Hawaii, 1995)
Waterboarding is torture regardless of the surrounding circumstances – there is no circumstantial or necessity defense to torture claims.
It is time for the appointment of a special prosecutor – General Mukasey must recuse himself because of his refusal to publicly state that waterboarding is criminal torture. As explained in the law review article and elsewhere, the following individuals played primary roles in the authorization of waterboarding and should be immediately identified as the primary subjects of the investigation:
George W. Bush
Richard “Dick†Cheney
John Ashcroft
Alberto Gonzales
Donald Rumsfeld
George J. Tenet
John E. McLaughlin
Porter Goss
David Addington
Jay S. Bybee
John Yoo
Jack Goldsmith
General Ricardo Sanchez
General Geoffrey Miller
General Janis Karpinski
Bush/Cheney Pardon Calendar
Under the circumstances – a public confession of criminal acts by George W. Bush — you should expect that immediately after the November elections George W. Bush will pardon all of the people listed above, then resign. At that point, Richard “Dick†Cheney would become President, and you should expect that in that capacity Cheney will immediately pardon George W. Bush.
Immediate Appointment of Special Prosecutor
As a result of the expected pardons, a special prosecutor should be appointed immediately
Commencement of Impeachment Proceedings
As a result of the expected pardons, on the day after the November elections, the House of Representatives should impeach George W. Bush and Richard “Dick†Cheney for high crimes — torture — violating the following statutes, among others:
18 USC 3231
18 USC Sections 2340-2340A
18 USC 2441
Please note the strategic importance of simply presenting the impeachment to members of the House with no hearings and an immediate vote on the day after the November elections. There is no reason for hearings or delay, since George W. Bush has admitted the criminal act that is the basis of the impeachment.
International Crimes Not Subject to Pardon Power
It is worth pointing out that torture violations of the Law of War and international treaties are not subject to the Presidential pardon power. We will see these individuals on trial in the Hague for their publicly confessed war crimes.
“Above the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying and Claims to Unchecked Executive Power,†Jordan J. Paust, Utah Law Review, 2007, Number 2, Pages 345 to 419
Article available free at: http://www.law.utah.edu/_webfiles/ULRarticles/150/150.pdf
“Critics say waterboarding has been outlawed under the United Nations’ Convention Against Torture, which prohibits treatment resulting in long-term physical or mental damage.”
Problem is, that could apply to almost anything. Even simply putting people in prison would be considered “torture” under such a wildly loose definition.
And let’s face it – It’s ridiculous the amount of attention this has received when it’s only been used three times, and never since 2003. Especially when you consider the three guys that were waterboarded (all high-level Al-Qaeda leaders). Meanwhile, countries like Iran and Saudi Arabia administer floggings daily and no country in the world utters a peep.
It seems to me that using euphemisms like “waterboarding” or “simulated drowning” underplay the actual impact of this form of torture.
Considering the impact of words & ‘issue-framing’, it seems to me we should find a more apt description of the practice.
Taking a cue from the so-called religious-right, my choice has been to call it:
“Partial Drowning Water Torture”…
After all, the only difference between being waterboarded and being drowned to death is merely the skill & intent of the torturer… it’s not like you can’t drown from being waterboarded, it’s just not the usual outcome.