No Comment — February 7, 2008, 1:31 pm

Torture Groundhog Day

For those of you who missed the week’s big news—of course it wasn’t Super Tuesday—it was the day before, when Punxsutawney Phil the groundhog appeared just before dawn to announce that we face another six weeks of winter. But the Bush Administration is nothing but a series of Groundhog Days, just the sort to which Bill Murray finds himself condemned in the movie of that name. And the cycle that the Bush White House serves up is torture, and particularly waterboarding, 24/7. Let’s just look at the ways it’s figured in the press in the last few days.

Mukasey Again
Attorney General Mukasey appears on the House side today, where he faces a list of preannounced questions. At the top of the list figures, once more, torture policy. In three days before the Senate Judiciary Committee, Mukasey demonstrated a tenacious refusal to provide meaningful answers. He acknowledged that he was now “read into” the program, and that he had examined, and apparently “approved of” the memoranda that Steven Bradbury had crafted for purposes of authorizing the Bush Administration’s highly coercive interrogation program, which focuses on official cruelty as a firm tenet of policy—for the first time in American history. I have previously done my best to read the tea leaves and interpret what’s likely going on in those memos. Today the House Judiciary Committee will be probing further, though it is not likely to make much progress judging by Mukasey’s answers. As I write this he is saying that he will not look into waterboarding, a statement which reflects his position that waterboarding is lawful.

Confirm the Torture Memo Writer
The Justice Department’s Office of Legal Counsel has since the fall of 2001 played a key role in crafting the Bush program using highly coercive techniques. Jack Goldsmith, who briefly headed the office, noted that it has the power to issue a pardon in advance for government actors who are engaged in criminal conduct. And under Bush, this is the principal function to which the office has been put, generating a limitless supply of get-out-of-jail free cards to trusted servants of the president. As noted previously, when the Assistant Attorney General in charge, Dan Levin, indicated he was troubled by the idea that the existing memo would be read as approving waterboarding in all circumstances, and set out to write a new memo, the Bush White House sprang to action. Dan Levin was dismissed, and Steve Bradbury was inserted in his place. Bradbury has all the requisite credentials as a co-founder of the Federalist Society and former clerk of Justice Clarence Thomas. And Bradbury has rendered a series of memoranda whose content is not known, but which clearly authorize and approve torture techniques, including waterboarding. The issuance of these memoranda was a criminal act under the standards of United States v. Altstoetter. But that’s a problem that Bradbury will face later in his career.

Bradbury’s more immediate problem is that the Senate Judiciary Committee does not believe he’s qualified to hold office as an Assistant Attorney General. Worse still, they deny that he is the acting Assistant Attorney General with authority to issue those memos (which means that the memos he issues have no more legal effect than a legal opinion issued by the undersigned). His nomination was labeled Dead on Arrival. Indeed, Bradbury doesn’t even seem to enjoy the confidence of many of the Republicans on the Judiciary Committee. When Mukasey appeared, several senators questioned him about Bradbury, making clear that they do not consider Bradbury to be lawfully installed as the head of OLC—a view now very widely shared by administrative law experts. Mukasey attempted to blunt this criticism by saying that Bradbury was “one of the finest lawyers I’ve ever met.”

There aren’t a lot of people in the legal community who share Mukasey’s high opinion of Bradbury. The word most in circulation is “hack.” But Bradbury stands in very high regard with the White House, which is what matters. In fact the Bush White House is very much attached to Bradbury. They seem to view him as a White House control point within the Department. Maybe some day we’ll get a bit more detail on why.

Yesterday, Senate Majority Leader Harry Reid took to the floor to offer an explanation as to why the Bush Administration’s appointments in Justice have been logjammed. And it turns out to be all about the torture lawyer Bradbury. Indeed, Reid quotes Bush as saying, with his signature defiant swager “It’s Bradbury or nobody.” You can examine the complete text of Reid’s remarks here. If you thought for a second that the torture issue didn’t matter to Bush, guess again. As I have been arguing for some time now, this is the new litmus issue. Abortion, same-sex marriage and flag desecration are out the window. It’s now all about waterboarding, long-time standing, hypothermia and the use of psychotropic drugs. George Bush has found his crack.

Yes, We Do Torture
Ever since the first photographs of Abu Ghraib surfaced, George W. Bush has answered all queries about torture with “We do not torture.” At first it was delivered in an aggressive, angry tone as if the very question was insulting. More recently it comes from a tired and unconvincing face, as if the president himself did not believe the words he was uttering (a good thing—it would mark an approach to reality). But in the last several days, the twin dark lords of the nation’s intelligence community, NDI Michael McConnel and DCI Michael Hayden, have gone public with statements about waterboarding. They confirm that the Bush Administration did use waterboarding, and they describe the circumstances, essentially corroborating the statements made by retired CIA agent John Kiriakou. They described a limited number of cases and said that was it, there were no more. I welcome that the long chain of blanket lies about waterboarding has finally been broken. But then public officials usually take some time “getting comfortable with the truth” when a story breaks. I’d express some skepticism as to whether we’re getting the whole story just yet. Admiral McConnell was pressed by Senator Feinstein to account for his confession in an interview with the New Yorker’s Larry Wright that he would consider waterboarding to be torture if it was done to him. The Wright article is a watershed on several points, including McConnell’s admissions on waterboarding and Wright’s very effective countering of McConnell’s false claims concerning the scope of surveillance intercepts. It seems that McConnell recognized that he had been too candid and pleaded with Wright to exlude the passages from his article, which Wright—to his credit—refused to do. You can read the transcript of the hearing and a passage from the Larry Wright’s article here. Why was Michael Mukasey so extraordinarily hesitant in any way to acknowledge the use of waterboarding? Why was a criminal investigation into retired CIA agent John Kiriakou launched when he admitted the use of waterboarding by the CIA? There are very simple answers. Waterboarding is a criminal act under the War Crimes Act, the Anti-Torture Act and several other federal criminal statutes. Mukasey did not want to admit that crimes were committed, and he did not wanted to investigate them. Now a confession of criminal conduct has occurred, on the record, by senior figures of the Bush Administration. They each went out of the way to distance themselves from the criminal misconduct, placing the blame on predecessors.

True, Michael Mukasey won’t investigate these crimes. But it remains highly likely that they will be investigated in the future. There is no applicable statute of limitations and the clock is now ticking until the day on which a new president is sworn in. We don’t know the name of that president yet. But we do know that he or she is committed to ending the torture regime and is unlikely to share the Bush Administration’s obsession with impunity for criminal conduct.

The Once and Future Waterboarding
Attorney General Mukasey announced that policy had changed and that waterboarding was no longer used. So is there an end to the story? No. The White House did a favor yesterday by noting that President Bush wants to keep the possibility of using waterboarding in the future alive. Here’s the AP’s report following yesterday’s press gaggle:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives. President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

Is the Torture Discussion Too Narrow?
Questioning and discussion continues to focus on waterboarding. Alabama’s Jeff Sessions says he just doesn’t understand all this focus on waterboarding since it’s closely controlled and rarely used. The debate focuses on it for a simple reason: if Attorney General Mukasey and his sidekick Steve Bradbury can conclude that waterboarding—which is iconic torture—is lawful, then there is very little that they won’t be able to approve. In effect, the practice of waterboarding is being used to bash through the prohibition against torture altogether. But in another sense, Sessions is right. Other torture practices are far more widespread and therefore arguably still more important. I’d focus on four techniques which are plainly torture and are being used by the CIA today:

• Hypothermia

• Long-time standing

• Sleep deprivation in excess of 2 days

• Psychotropic drugs

In addition to these techniques, there are the almost ubiquitous Kubark techniques, which used a combination of sensory deprivation followed by sensory overload and which can effectively turn their subject into a vegetable. The application of the first four certainly constitute criminal acts under U.S. law. The Kubark process probably does as well. And on these points, a debate has hardly even been engaged.

Brace yourself. Groundhog day is likely to last until next winter.

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