- Current Issue
SIGN IN to access Harper’s Magazine
Need to create a login? Want to change your email address or password? Forgot your password?
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
Harry Reid made a stirring appeal on Friday. Bush, he said, should use his State of the Union Address to renounce torture and all its works and put an end to policies that have brought disgrace and infamy upon the country:
As we await President Bush’s final State of the Union address Monday night we know one thing for sure: that cherished faith in America has been greatly diminished and with it, our ability to respond to the critical challenges that threaten our security. 158,000 young Americans rise each morning in the deserts of Iraq to face another day of risk they cannot predict and hatred they did not create. Osama Bin Laden remains free and the Al Qaeda network grows stronger. Afghanistan, once hailed as a great success, continues to backslide into violence, extremism, and a rampant drug trade. The path toward democracy in Pakistan wavers, with billions of American anti-terrorism dollars unaccounted.
And the moral authority of our great nation has suffered grave damage. Our first goal as a country must be to restore that moral authority . . . The most effective way to fight terrorism is to harness all of our power – military, economic, and moral. When we do, the world will follow our lead once again. It may take years. But when President Bush delivers his State of the Union address Monday night, he can take the first steps.
He can start by announcing that America does not torture.
Bush may very well say that “we do not torture.” He said it in the teeth of the photographs from Abu Ghraib, the gruesome scenes of Guantánamo, the deaths in Bagram and the scandalous reports from the system of CIA blacksites. It is one of Bush’s most practiced, most artfully delivered and least believed lies. But we know he is wedded to torture. It is, for the Bush years, the surest evidence of the morally corrosive wielding of power for the sake of power, of power untamed by accountability, of power placed beyond the hold of Law.
The firmest proof of Bush’s commitment to the idol torture can be found in his defacing of the Department of Justice. At length, of course, this agency has not the remotest relationship to justice. So let’s call it by a name that better reflects the purpose to which its has been converted. Now it’s the Ministry for Torture.
This week, Bush will deliver his State of the Union Address, as the Constitution requires. He will deliver it before a hall in Congress whose members now by and large recognize him for the unworthy individual he always was. But while this appearance will command the spotlight, the Ministry for Torture will also be accorded its measure of attention.
Mukasey and Waterboarding
On January 30, Attorney General Michael Mukasey is to appear before the Senate Judiciary Committee. From discussions with committee staffers, I have a pretty good sense of the questions he will face. “We have some unfinished business with him,” as one told me. At the top of the agenda stand the questions that Mukasey artlessly evaded on the second day of his confirmation. That was a series of questions concerning torture, starting with the simple request for clarification of whether he embraced waterboarding and had opined to its legality?
During his confirmation, Mukasey feigned ignorance about what waterboarding was. When it was defined to him, he responded with a tautology, saying that “if waterboarding is torture, then it is torture.” He refused any further response.
Two months have passed. Mukasey acknowledges that he has now been “read into” the Administration’s torture program and the advice furnished by his agency to promote and implement it. But at a press conference on Friday, he sent a very clear signal to reporters on how he will cope with the questions he fully anticipates.
Does the harsh interrogation technique known as waterboarding amount to torture?
“I didn’t say I wouldn’t answer it,” he said at a news conference. “I didn’t say that I would.”
So there you have it. Mukasey is resolved to stonewall.
What significance is to be attached to this tactic? The substance is covered by the old legal maxim qui tacet consentit, namely “he who keeps quiet states his consent.” Mukasey is acknowledging by his silence that the Government uses waterboarding as a technique, and that the Justice Department has provided cover for this criminal conduct through one or several devices—an Office of Legal Counsel memorandum which holds, in the Yoo tradition, that anything the president authorizes is lawful (since the president is above any positive law, at least when he acts as commander-in-chief in wartime), or a non-prosecute agreement issued by Alice Fisher and the Criminal Division that allows the intelligence community to use torture techniques with assurance of impunity, for instance. The silence implies that Mukasey has fully bought into the conspiracy to cloak torture practices and insulate those who introduced the practices from the fury of the law they otherwise would face. It is an ultimate act of political corruption of criminal justice. Superior analysis of this issue is offered by Georgetown Law’s Marty Lederman here and was discussed at a recent forum of the American Constitution Society which can be viewed here.
The Shackled Inquiry
We see Mukasey’s intentions in another step. As I have argued along with many others, the destruction of the CIA torture tapes exposes the torture regime to its first criminal inquiry. Mukasey acted very quickly to head off the risk that this presented to the White House. Although he picked an able prosecutor, he put blinders and a harness on his prosecutor. He will be politically directed and limited in the questions he can examine. And based on Mukasey’s answers on Friday, it is now fairly plain that the “tapegate” prosecutor will be instructed not to examine the issues presented by what’s on the tape. He will be instructed that this conduct is the subject of an OLC memo that approves the techniques used—that they bear the Attorney General’s seal of approval.
The Renomination of the Torture Lawyer
Remember that when Assistant Attorney General Daniel Levin started asking questions about waterboarding and announced he had severe reservations about its legality, the White House and Ministry for Torture had a swift reaction. Levin was fired immediately. And a new man was brought in to safeguard the torture practices. His name was Steven G. Bradbury, a co-founder of the Federalist Society and former law clerk to Clarence Thomas. We still haven’t seen the text of the Bradbury memoranda—there are several of them—but we know that Vice President Cheney and his chief of staff David Addington were elated with the content. The world was once more made safe for torture and torturers.
Bradbury was sent up to the Senate for confirmation, where he failed to receive much support on either side of the aisle. Why? Bradbury had been dubbed “Yoo Two” and the “Torture Lawyer.” It was understood from the outset that he played one vital role, which was safeguarding the President’s torture program. He stonewalled all efforts to probe his views on torture and the Justice Department declined to make his opinions known.
When Mukasey was up for confirmation, he was repeatedly asked to withdraw the nomination of the Torture Lawyer. And now we have Mukasey’s answer:
“Steve Bradbury is one of the finest lawyers I’ve ever met,” Mr. Mukasey said when asked if he supported the White House move. “I want to continue working with him.”
Bradbury’s nomination has been sent back. The Bush Justice Department is convinced that it needs him to help weather the storm. But to be clear, Bradbury is not appreciated for the content of his character as much as for the extreme flexibility of his legal opinion writing. Like John Yoo, he never saw a presidential deed in time of war for which he couldn’t find a legal justification. Doubtless, of course, Bradbury’s constitutional vision will undergo a sharp correction on January 20, 2009. I imagine that after that date he’ll find plenty of reasons to challenge the conduct of his commander-in-chief.
The Faustian Pact
Another disturbing aspect of this entire show takes us back to that fateful meeting that Michael Mukasey had with a group of “movement conservatives” when he was in the process of seeking approval for the White House’s nod to be Attorney General. As related in the press, and confirmed in Mukasey’s own written answers to questions put to him by Senator Durbin, Mukasey was pressed on two points. The first was that he would not appoint any special prosecutors who might look behind the curtains at the involvement of the White House in various dirty dealings in which Justice was also involved. The second was that he would fully and firmly support the torture program. As of this weekend, it is clear what Mukasey’s position on each of these points is. It now appears that Mukasey ascended the position of attorney general on the strength of a Faustian pact with the movement conservatives. Did he assure them he would squelch independent criminal investigations in which the White House was concerned, and that he would stand firm behind the torture program? Right now it certainly looks that way.
Fire Brian Roehrkasse
January is the month named in honor of the two-faced Roman god Janus. So January is the perfect moment to recall that Brian Roehrkasse remains on duty as the Justice Department’s chief press spokesman. Roehrkasse is a consummate political hack who has brought the Justice Department’s public relations function to a new low. In the current issue of the Washington Monthly, former Little Rock U.S. Attorney Bud Cummins gives us a good recap of Roehrkasse’s well-earned reputation for disseminating falsehoods:
With rare exceptions, the Department of Justice has a distinguished history of nonpartisan pursuit of the laws of the United States. It conducts its business across the nation through ninety-three U.S. attorneys’ offices, each led by a presidentially appointed U.S. attorney who is the chief federal law enforcement official in the federal district. One of the many responsibilities of the U.S. attorney is to speak, at times, on behalf of the DOJ.
From 2001 to 2006, I was one of those ninety-three attorneys, appointed to the Eastern District of Arkansas. Much of the work I did couldn’t be discussed publicly, for legal or ethical reasons. When I did speak to the media, however, I always made sure to be precise and accurate. Credibility is the currency of a federal prosecutor who represents the government. Former Deputy Attorney General Jim Comey often reminded my colleagues and me that U.S. attorneys are immediately assumed to be credible—not because of who they are but because of whom they represent, the United States of America. Credibility is a formidable weapon, and those granted it have a solemn responsibility to preserve it. That means telling the truth.
Cummins notes that of the half-dozen figures who were caught in public falsehoods related to the U.S. attorneys scandal, a single one remains in office: Brian Roehrkasse. In fact, thanks to one of the last acts of Alberto Gonzales, rewarding him for his devotion to his political bosses over the truth, Roehrkasse was promoted to be director of the Justice Department’s Office of Public Affairs. He goes on to itemize five flat lies that Roehrkasse used to try to quell public concerns about the U.S. attorney’s scandal. As I have noted elsewhere, this is very far from a comprehensive list. Basically, Cummins has listed only the lies of which he has personal knowledge.
Of course, serving as head of the Department of Truth within the Ministry of Torture can be a daunting task. So perhaps we should salute Roehrkasse for his versatility and flexibility. Having spent much of my own life working with Communist and formerly Communist states in Eastern Europe, I am very impressed with Roehrkasse’s ability to import useful techniques from abroad to help him accomplish his ultimate mission—of spreading confusion in the enemy camp (that consists, of course, of the media). And of course, Roehrkasse views any journalist who does his job and digs in deeply into the affairs of the Justice Department as the “enemy.” Proof of that comes in his recent decision to ban Talking Points Memo, perhaps the most indefatigable blogging media team covering developments at the Justice Department. That’s one way to deal with pesky reporters who give you trouble: pretend they don’t exist. Block their access to information about the Department. Make it as hard as possible for them to do their job.
Bud Cummins has sound advice to Michael Mukasey, if he seriously wants to address the Department’s image problem:
at the top of his list should be finding the DOJ a trustworthy spokesperson. That means telling Brian Roehrkasse to find a position more suited to his abilities. Hollywood, I suspect, awaits him.
I would second Cummins’s advice. Mukasey was presented with the twelve labors of Hercules when he took the reins of Justice from Fredo Gonzales. So far I can’t say I’m much impressed. He’s taken a broom and a mop here and there, when the job called for rerouting the rivers Alpheus and Peneus. So perhaps Roehrkasse is just the sort of PR hack to have at the ready.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Percentage of African countries in which it is illegal to practice homosexuality:
Americans consider orange cats to be friendly, tortoiseshell cats to be intolerant, and white cats to be aloof.
In Norfolk six black-tipped reef sharks, a bonnethead shark, a bowmouth guitar shark, six penguins, and a green sea turtle were evacuated from the Hunstanton Sea Life Sanctuary because of flooding.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”