No Comment — December 15, 2007, 10:10 am

The President’s Coming-Out Party

This has been an important week in the torture debate in America. It has been the week of the President’s coming-out party. Up until this point, torture has been something that “a few rotten apples” do. When evidence of it erupted in the media, a few grunts were quickly rounded up and scapegoated. Never officers, mind you—after all, they generally knew where the orders came from, and if you prosecuted them, they might just tell.

But this week, a CIA agent, John Kiriakou, appeared, first on ABC News and then in an interview with NBC’s Matt Lauer, and explained just how the system works. When we want to torture someone (and it is torture he said, no one involved with these techniques would ever think anything different), we have to write it up. The team leader of the torture team proposes what torture techniques will be used and when. He sends it to the Deputy Chief of Operations at the CIA. And there it is reviewed by the hierarchy of the Company. Then the proposal is passed to the Justice Department to be reviewed, blessed, and it is passed to the National Security Council in the White House, to be reviewed and approved. The NSC is chaired, of course, by George W. Bush, whose personal authority is invoked for each and every instance of torture authorized. And, according to Kiriakou as well as others, Bush’s answer is never “no.” He has never found a case where he didn’t find torture was appropriate. Here’s a key piece of the Kiriakou statement:

LAUER: Was the White House involved in that decision?

KIRIAKOU: Absolutely, this isn’t something done willy nilly. It’s not something that an agency officer just wakes up in the morning and decides he’s going to carry out an enhanced technique on a prisoner. This was a policy made at the White House, with concurrence from the National Security Council and Justice Department.

He then goes into the process in considerable detail. Watch the video here.

So now the process can be fully diagrammed, and the cast of characters is stunning. The torture system involves the operations division of the CIA on the implementation side. They rely heavily on contractors, it seems, in torturing people. And a special role is apparently played by a couple of psychologists. (Time used to be that healthcare professionals had an oath. It started “first, do no harm.” But, just like the Bible and the Constitution, that’s so pre-9/11. And with the American Psychological Association providing full cover, what’s the worry.)

We know that the Justice Department is right in the thick of it. Who precisely? The answer is most likely the Office of Legal Counsel—which has now emerged as what George Orwell called the “Ministry of Love” (remember: in Nineteen Eighty-Four that’s the ministry that picked and approved torture practices). But it doesn’t end with the opinion lawyers. The National Security Division is also in the thick of things, apparently. Alberto Gonzales, before he became attorney general, played station master for the initial series of torture memos. Once he landed at Justice, he kept a close watch on all torture issues and lied to Congress about it. With the attorney general’s office staking out a close interest in torture, it’s unlikely that others in the Department would have substituted their judgment for his. Thus the ball would seem to be squarely in Michael Mukasey’s court.

And finally the White House. David Addington, Dick Cheney, Condoleezza Rice and Stephen Hadley—these are all name we can now link directly to the torture system. Not just as a matter of theory. As a matter of practical application. They decided who would be tortured and how. And John B. Bellinger III, the man who keeps making a laughing-stock of himself with speeches on international law (as, for instance, when he tells us he can’t raise a legal objection to the idea of the Iranians waterboarding some captured American airman), who was legal counsel at NSC and continues now to hold that role with Condi Rice at State. He constantly issued assurances “off the record” to human rights groups and bar groups that we certainly don’t torture. And now it’s reasonably clear that he was right in the thick of the torture approval process all along.

This resurrects the process of official cruelty under the Stuart monarchs in seventeenth century England. Persons accused of state crimes very frequently were interrogated with the use of specific techniques, including the rack, the thumbscrew, and waterboarding. King James I personally described the process in The Kings Booke (1606). He would, on the advice of his officers, “approve no new torture,” but he would certainly avail himself of the existing practices. In ascending order of severity they were: thumbscrews, the rack and waterboarding. That’s right. Waterboarding was considered the most severe of the official forms of torture. Worse than the rack and thumbscrews.

james1st

In the depraved humor of Dick Cheney, of course, it’s just bobbing for apples at a Halloween Fair.

We should be very clear about this. The Kiriakous of the world are not blameless. But they are not much more than tools in the hands of those who drive the torture machine. Real moral and legal culpability lies with those in leadership positions who sanction and approve this system. The use of torture—waterboarding, hypothermia, long-time standing, and other extreme practices—is a criminal act. If the Justice Department has blessed it—and we now know this for a fact—then figures in the Justice Department, including the Attorney General, have made themselves accessories to a serious crime. Since the end of World War II at least, the use of these torture practices has been universally recognized as a criminal act subject to the most severe sanction.

This is the background against which the current acts of the new Attorney General, Michael B. Mukasey must be judged. As I noted previously, there is a strong basis to fear that Mukasey came up through a litmus test under which he was required to do two things: (1) to give his commitment to continue to provide cover for the torture system, and (2) to block any effort to have a meaningful criminal investigation that would disclose the torture system or any of its details. As things now stand, it looks like Mukasey is delivering on these test points. He’s been on the job for a month, and he continues to publicly refrain from expressing an opinion on waterboarding. This signals that there has been no change in the status quo ante, namely, torture techniques including waterboarding remain on the agenda, available for use.

So that takes us to the key question of getting to the bottom of it. The Justice Department has announced an “initial probe” into the destruction of the CIA torture tapes. There is no credible basis upon which this can be viewed as anything other than a conscious crime. The tapes were destroyed, even according to sources within the CIA, because of imminent fear that they would constitute evidence in a criminal prosecution of persons involved in the acts of torture. And even beyond this more general concern, they were destroyed so they would not be turned over to a federal judge who was demanding them. They were destroyed to protect a series of false official statements about the way individual prisoners, whose statements would be used in evidence, were in fact being treated.

Remember, in these trials, a defendant can seek to exclude evidence if it was secured through torture. But the defendant has an obligation to prove this contention. The tapes would have provided such proof. Destroying them would therefore help make the evidence admissible.

Note also, no one has ever even raised the possibility that the destruction was inadvertent or accidental.

All that being said, we should ask: why do we need an “initial assessment”? Things couldn’t possibly be more clear. It is as if Julius Caesar was stabbed to death on the floor of the senate with a hundred onlookers, and now the Justice Department wants to weigh carefully whether there is evidence sufficient to justify a homicide investigation.

Also, the matter is passed to Kenneth Wainstein, the head of the National Security Division, for study. It could have been given to the Justice Department’s Inspector General. He and his team have garnered the universal respect of Washington watchers for their relentless fairness and objectivity. But instead it goes to a division within the Justice Department which is itself a focus of strong suspicion. If anyone other than OLC is involved with the official torture program, and certainly has knowledge of it, then that person is Mr. Wainstein. In other words, he has the strongest possible motivation to deep-six this investigation as quickly as possible.

So is there any reason to have confidence in the steps taken by the Attorney General? No. They look like a decision has been made to close the door on the matter, and start another cover-up. And today, the evidence of a cover-up within the Justice Department, with the full involvement of the Attorney General mounts. The New York Times reports:

The Justice Department asked the House Intelligence Committee on Friday to postpone its investigation into the destruction of videotapes by the Central Intelligence Agency in 2005, saying the Congressional inquiry presented “significant risks” to its own preliminary investigation into the matter.

The department is taking an even harder line with other Congressional committees looking into the matter, and is refusing to provide information about any role it might have played in the destruction of the videotapes. The recordings covered hundreds of hours of interrogations of two operatives of Al Qaeda.

The Justice Department and the C.I.A.’s inspector general have begun a preliminary inquiry into the destruction of the tapes, and Attorney General Michael B. Mukasey said the department would not comply with Congressional requests for information now because of “our interest in avoiding any perception that our law enforcement decisions are subject to political influence.” Over all, the position taken by Mr. Mukasey, who took office last month, represented what Justice Department officials described as an effort to caution Congress against meddling in the tapes case and other politically explosive criminal cases.

The Justice Department’s remarks need some dissection. First, they claim that a Congressional inquiry might get in the way of a Justice Department inquiry. It is true that Congressional probes can impede efforts at law enforcement—Congress may grant limited immunity to witnesses to secure their testimony, and they may make it very difficult to secure a conviction. This was a lesson out of Iran-Contra (or perhaps the more cynical would say that Laurence H. Silberman and David Sentelle, two Republican judges with a long track record of judicial political trench warfare, used this as a pretext to bail out their friends). But it would only make sense if we presuppose that there is a meaningful Justice Department criminal investigation. In fact there isn’t. There is only a “preliminary assessment,” which has, moreover, been placed in the hands of a person who is extremely close to the crime scene.

Second, the Justice Department is refusing to provide evidence to the Committees. What’s the justification for this? It’s consistent with the posture taken by Justice with respect to the contempt citation against Karl Rove, and its refusal to produce information in the House Judiciary Committee. There is no legal justification. It is a coarse assertion of Executive Power. “We answer to the president. We don’t answer to you.” The message could be crafted in cruder terms. I’d call it a conscious decision to obstruct a Congressional inquiry. And in this case, it has another aspect. It is a conscious decision to shield criminal conduct from exposure before the watchdog appointed by the Constitution: Congress.

Third, Mr. Mukasey states that a probe would run counter to “our interest in avoiding any perception that our law enforcement decisions are subject to political influence.” But that’s the very question. The question is whether the Department of Justice is enforcing the law. The suspicion is that it quietly does the president’s bidding and ignores the law. Indeed, the evidence for that is already conclusive, and this is why the reputation of the Department of Justice is now in a shambles. The Justice Department has been thoroughly politicized. We’re looking for evidence that the politicization of the Justice Department has stopped. And Mukasey isn’t going to give us any. Mukasey’s meaning appears to be still more pointed. “You,” he says to Congress, “are political influence. By contrast, the president is my lawful liege and master.” The statement as put is completely absurd. Congress has exercised no meaningful influence over the Justice Department. It hasn’t even exercised its Constitutional duty, which is oversight. Mukasey’s answer is as absurd as it is insulting.

The Justice Department has been brought low in the eyes of the world by crass political manipulation. We see that in the Civil Rights Division, in a series of crude political prosecutions, many of which were driven by political operatives in the White House, by an employment process that brought in “loyal Bushies.” But we also see that in the program of torture and official cruelty. This is the subordination of the Rule of Law to the will of one man.

Michael Mukasey promised a fresh face and an end to the political abuses at Justice. I’m struggling to find the evidence of his performance on that promise. So far, all I see is straight-line continuity with the Justice Department of Alberto Gonzales.

There is only one appropriate response from Congress. Press ahead with investigations. Don’t hesitate a second. Lay on staff for this. Issue subpoenas. And if Mukasey’s Justice Department gets in the way, call them out on it, and do so loudly. The only tool that will bring this Justice Department into line and will attune it once more to its constitutional duties before the Congress and the public is a whipping. And it thoroughly deserves one. This Justice Department needs to decide whether it is going to start serving the law or continue being a massive crime scene. It’s a stark choice, and the moral alternatives couldn’t be clearer.

Update: More Evidence of DOJ Cover-Up
Just as I posted this, the Associated Press issued a story which gives much more substance to my suspicions. In submissions filed with a federal judge in Washington, the Justice Department has taken the legal position that the Bush Administration was under no obligation to preserve the tapes, and insisting that the Court look the other way and undertake no investigation. Here’s the AP’s lead:

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction. In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

It was the first time the government had addressed the issue of the videotapes in court. Kennedy ordered the administration in June 2005 to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

Let me translate this for you from the legalese. Mukasey to judge pressing queries about tapes destroyed in defiance of his court order: “Drop dead.” The political bucaneer appearing for the Justice Department, Jeffrey S. Bucholtz, explains that if the Court starts looking into the matter, it might get in the way of the Justice Department’s preliminary investigation. Mr. Bucholtz is a certified “movement conservative,” a former clerk to Judge Alito, and a man who earned his Bush DOJ stripes by successfully arguing that Dick Cheney is immune to litigation and discovery, including of what he has lurking in that man-sized safe.

Note: same brush off used with Congress. Note: Mukasey refuses to conduct a real investigation. Won’t appoint an special prosecutor. Note: They launch their argument with a bald claim that the destruction was legal.

“Trust us,” they ask. And to that the answer must be, “why?” The reservoir of trust was exhausted five years ago.

Special Note to Senator Schumer:
You’ve been out there telling your constituents, who are generally steaming at you over your decision to make Michael Mukasey the Attorney General (and it was your personal decision), that they should take solace from the “facts” that David Addington and Alberto Gonzales opposed the Mukasey nomination. I think that is so. You are also busy telling people that you’re a “pragmatist.” We need pragmatists in politics, of course. Without them the system won’t work. Let’s just be sure that we don’t use political pragmatism to justify sending the Constitution to the shredder and institutionalizing a system of torture. There are some areas where being “pragmatic” is not an acceptable response—on that point, I’m solidly with Barry Goldwater and Bruce Fein. Show your constituents that you care about our national values. Push this probe as aggressively as possible. Don’t relent. Who knows, maybe your constituents will even forgive you for an excruciatingly bad judgment call. After all, I made the same mistake.

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