Mukasey: “…there is no occasion to consider prosecution…”

Since he replaced disgraced Attorney General Alberto Gonzales last year, Michael Mukasey has stonewalled every attempt made by Congress to investigate the Bush administration’s most controversial policies related to the so-called global war on terror.Now Mukasey is taking his loyalty to President George W. Bush even further: by publicly declaring there is no legal basis to prosecute current and former administration officials for authorizing torture, domestic surveillance, and certainly no reason for President George W. Bush to issue blanket pardons when he leaves the White House in January to the individuals who implemented those policies.

“There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said during a roundtable discussion with reporters Wednesday. “In those circumstances, there is no occasion to consider prosecution and there is no occasion to consider pardon.

“If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.”

That statement appears to be a thinly veiled warning to the incoming Obama administration to steer clear of pursuing Bush administration or Justice Department officials who may have committed crimes related to the administration’s decision to approve torture and domestic surveillance.

But Rep. John Conyers, the chairman of the House Judiciary Committee, immediately took issue with the “breadth” of Mukasey’s statement “and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law.”

Conyers sent Mukasey a three-page letter Thursday reminding Mukasey that reams of evidence in the public domain backed up by testimony from career military and law enforcement officials that show top White House officials may have in fact broken the law by authorizing torture and domestic surveillance.

“The public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General [James] Comey that the Department would be ashamed if the world learned of the legal advice it had given on torture issues,” says Conyers letter, which was also signed by Rep. Jerrold Nadler, the chairman of the subcommittee on The Constitution, Civil Rights and Civil Liberties.

War Crimes

Indeed, Maj. Gen. Antonio Taguba, who led the wide-ranging abuse investigation at Abu Ghraib, said “there is no longer any doubt as to whether the current administration has committed war crimes,” he concluded. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Conyers added, “Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to “If the detainee dies you’re doing it wrong – or the Department lawyer who advised him – justifiably believed that approach comported with the law?”

Conyers was referring to documents made public during a hearing of the Senate Armed Services Committee this year where, Jonathan Fredman, chief counsel to the CIA’s Counterterrorism Center, discussed with U.S. military officials how interrogators could use the “wet towel” technique, also known as waterboarding, against detainees to extract information.

“It can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function,” Fredman said on Oct. 2, 2002, during a meeting where specific techniques were reviewed and debated, according to the meeting minutes.

Fredman added that the “wet towel” technique would only be defined as torture “if the detainee dies.”

“It is basically subject to perception,” Fredman said. “If the detainee dies you’re doing it wrong.”

Fredman’s comments prompted Lt. Col. Diane Beaver, then the chief military lawyer at the U.S. military base at Guantanamo Bay, Cuba, to respond: “We will need documentation to protect us.”

Conyers’s letter signals that there is a strong possibility his investigation into the Bush administration’s interrogation practices will continue when the 111th Congress convenes in January. Mukasey had stonewalled that probe, along with numerous other congressional inquiries into the Bush administration’s counterterrorism policies, by refusing to release top-secret documents about the programs.

In fact, Mukasey rebuffed a request by Conyers in June to appoint a special prosecutor to investigate whether President George W. Bush and senior members of his cabinet committed war crimes by authorizing CIA and military interrogators to use harsh tactics against detainees at Guantanamo Bay and in Iraq.

The extraordinary request came on the heels of an investigation conducted by the International Committee of the Red Cross into the interrogation practices at Guantanamo Bay which “documented several instances of acts of torture against detainees, including soaking a prisoner’s hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball.”

DOJ Watchdog Probing Torture Memo

Mukasey also seems to have forgotten that his own internal watchdog at the Justice Department has spent four years probing the infamous Aug. 1, 2002 Torture Memo addressed to then White House Counsel Alberto Gonzales and written by former Office of Legal Counsel attorney John Yoo and signed by Yoo’s boss Jay Bybee.

That probe, which DOJ spokesman Peter Carr said is “ongoing” and will continue next year, is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” according to H. Marshall Jarrett, the head of the agency’s Office of Professional Responsibility, who is conducting the probe, launched in late 2004 after the Abu Ghraib prison abuses were documented.

The probe has centered on Yoo’s use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods. Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.

Jack Goldsmith, the former head of the OLC, who withdrew the Torture Memo when he began his short stint at the agency in October 2003, quickly determined that the Aug. 1, 2002 opinion was “sloppily written” and “legally flawed” and withdrew the memo.

“I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses,” Goldsmith wrote in his book The Terror Presidency. “I did so because the opinions’ errors of statutory interpretation combined with many other elements to make them unusually worrisome.”

Bush Authorized Torture Talks

There is ongoing debate as to whether the brutal interrogation techniques first used against suspected terrorists predated the Aug. 1, 2002 legal opinion.

In April, President George W. Bush told an ABC News reporter during an interview that he approved of meetings of a National Security Council’s Principals Committee, whose advisers included Vice President Dick Cheney, former National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, former CIA Director George Tenet and former Attorney General John Ashcroft, where these officials discussed specific interrogation techniques the CIA could use against detainees. Rice admitted she led those high level discussions, some held in July, according to documents obtained by the Senate Armed Services Committee.

Underscoring a point made in Conyers and Nadler’s letter to Mukasey, DOJ Inspector General Glenn Fine, issued a 437-page report on the Bush administration’s interrogation policies last spring, which found that White House officials ignored FBI concerns about the treatment of detainees.

The report singled out former Secretary of Defense Donald Rumsfeld who personally authorized the use of brutal interrogation techniques against suspected terrorists imprisoned at Guantanamo Bay despite warnings from the FBI that the methods amounted to inhumane treatment, was possibly illegal, and would not produce reliable intelligence.

“The FBI believed that these techniques were not getting actionable information, that they were unsophisticated and unproductive,” Fine testified before the Senate Judiciary Committee in June. “They raised their concerns with the Department of Defense, but the Department of Defense, from what we were told, dismissed those concerns and that no changes were made in the Department of Defense’s strategy.”

There are other ongoing investigations – some which may result in indictments when complete – being conducted by Mukasey’s DOJ about the policies he claims were the result of a good faith effort by DOJ attorneys.

Spying, CIA Tape Destruction Investigation

In a semi-annual report sent to Congress this week, DOJ Inspector General Fine said he is continuing to probe the DOJ’s involvement with the highly controversial terrorist surveillance program and the FBI’s use and abuse of exigent letters where agents sought phone and e-mail records to determine whether any federal laws were broken.

Then there is the investigation headed by John Durham, an assistant attorney general in Connecticut, was appointed special counsel earlier this year to investigate the destruction of videotapes in 2002 that documented CIA interrogators waterboarding detainees. Waterboarding is a technique that simulates drowning and has been regarded as torture since the days of the Spanish Inquisition. The tapes were ordered destroyed, according to published reports, because the individuals overseeing the interrogations feared criminal prosecution if the tapes were leaked.

During his roundtable discussion Wednesday, Mukasey also refused to say whether he believed waterboarding was torture. During his Senate confirmation hearing Mukasey refused to answer that question several times drawing criticism from lawmakers that nearly derailed his nomination to lead the Justice Department.

“I have been asked that twice,” Mukasey said in response to a question about the drowning technique. “Once during my confirmation hearings when I was not read in on the CIA program as it then existed, and so – although I had heard of the process, did not know how and what safeguards and so on, so I couldn’t comment.

“Thereafter, I learned, as I testified, and as I believe General Hayden confirmed it, it was no longer part of the program. Not only that, there have been since a number of other statutes including the Detainee Treatment Act and the Military Commissions Act that overlay the standards of the anti-torture statute. So the short answer is there is no occasion for me to comment on that. It is not part of any program that is currently in existence.”

Before the taped interrogations were destroyed, however, CIA officials pressed the Justice Department’s criminal division for assurances that they would not be prosecuted under anti-torture laws if they followed guidelines on aggressive interrogation techniques. The officials appealed to the head of the DOJ’s Criminal Division for guarantees. That person was Michael Chertoff, who headed the division and is now Secretary of Homeland Security.

Three years ago, when Chertoff was facing confirmation hearings to be Homeland Security chief, the New York Times cited three senior-level government sources as describing Chertoff’s Criminal Division as fielding questions from the CIA about whether its officers risked prosecution if they employed certain harsh techniques.

“One technique the CIA officers could use under circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning,” the Times reported.

In other words, Chertoff appears to have green-lighted waterboarding,

Chertoff reportedly did object to some other procedures, such as death threats against family members and mind-altering drugs that would change a detainee’s personality, the Times reported.

During his Senate confirmation hearings in February 2005, Chertoff denied providing the CIA with legal guidance on the use of specific interrogation methods, such as waterboarding. Rather, he said he gave the agency broad guidance in response to questions about interrogation methods.

“You are dealing in an area where there is potential criminality,” Chertoff said in describing his advice to the CIA. “You better be very careful to make sure that whatever you decide to do falls well within what is required by law.”

Nevertheless, the evidence continues to build that Chertoff’s assurances gave CIA interrogators confidence they would avoid prosecution as long as they stayed within the permissive guidelines devised by Yoo and Bybee, whose radical legal interpretations on executive power after 9/11 have been roundly condemned.

Civil Rights Groups Want Obama to Investigate, Prosecute

That evidence has lead civil rights organizations to press President-elect Barack Obama to aggressively investigate the Bush administration’s controversial policy decisions when he is sworn in next year. Obama has not indicated whether Eric Holder, his choice for Attorney General, would pursue any investigation into the Bush administration’s policies, particularly issues related to torture.

In response to numerous news reports about the possibility of Obama avoiding a criminal investigation or perhaps creating a Truth Commission to look into torture, Michael Ratner, the president of the Center for Constitutional Rights, said  “one of Barack Obama’s first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.”

Ratner’s organization has led the legal battle for the human rights of detainees incarcerated at Guantanamo Bay, Cuba, for the last six years.

In an article published in the magazine The Progressive, Ratner pointed to a statement Holder made a few months ago in which the Attorney General designee said the “American people” are owed “a reckoning.”

“Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution,” Holder said. “We owe the American people a reckoning.”

Ratner said anything less than a full-scale criminal investigation would be unacceptable.

“If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values,” Ratner wrote. “To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.

“This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions.. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.”

Conyers, meanwhile, demanded Mukasey explain, in writing, how he reached the conclusion that all Justice Department employees acted lawfully.

“If relevant Department probes – or other secret inquiries such as the widely-reported but never published 2004 Special Review by the CIA Inspector General [into harsh interrogations] – have been completed and provide the basis for your statement, please state when they have been completed and describe their conclusions and any actions you have taken in response,” Conyers and Nadler wrote. “If, on further reflection, you believe that your statement was in any part premature and overly broad, please so indicate” by Dec. 12.

Given that there is 46 days left before Obama is sworn in, and Mukasey’s history on responding to such requests, it’s unlikely Conyers will receive a response before Jan. 20.

http://www.pubrecord.org/law/540-mukasey-tries-to-steer-obama-away-from-probing-torture-spying.html