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Diego Garcia and the Mukasey Nomination


Diego Garcia is not a person. It’s a coral atoll located in the South Indian Ocean. And for some time now there have been stories murmured about what the CIA is doing there. According to several sources, happenings on Diego Garcia sit right at the core of the current confrontation between General Michael Hayden and the CIA’s Inspector General Helgerson.

The word is that the IG has asked highly unwelcome questions about the legality of several aspects of the CIA’s current SERE-based training program, developed for the agency by a couple of ethics-challenged psychologists. Those questions include the fact that the trainees themselves are being asked to submit to waterboarding, sleep deprivation, long-time standing and other techniques included in the parcel. And it seems that the IG’s challenge got backing within the CIA’s legal department, though not by interim general counsel Rizzo. Rizzo’s own nomination was just smacked down by the Senate because he embraced the enhanced interrogation techniques. Another major issue apparently relates to the use of psychotropic drugs in connection with certain techniques. Since the end of World War II at the latest the law on this has been extremely clear: the use of these drugs is a crime. The Agency’s track record of abuse of this law has provided many plot lines for Hollywood movies, and by the eighties it seemed the agency was being slowly weaned of its drug dependency. But now a relapse has set in.

General Hayden’s response is to try to cut the ground out from under those advocating a responsible understanding of the law. And the Justice Department’s OLC has, as before, provided him with key ammunition in the process.

And that brings us back to yesterday’s questioning of Michael Mukasey. The same question was lurking in the background, and it went unarticulated. So let’s be clear about what that question is: Has the CIA been given the go ahead to use torture and torture-lite techniques in its black sites overseas? The answer which emerges from everything we’ve seen is: Yes. The techniques in question include waterboarding, long-time standing, hypothermia, sleep deprivation in excess of two days, the use of dogs to terrify detainees, sexual humiliation techniques, and psychotropic drugs. Each of these techniques is very clearly illegal and their use is punishable as a crime. So the question for Michael Mukasey is this: has the Justice Department yet again been roped into to giving assurances that these crimes are not crimes, or that they will not be prosecuted?

Michael Mukasey delivered stirring opening remarks and acquitted himself very well in his testimony. If he stumbled, then it was on precisely this point. He equivocated unacceptably on waterboarding, using a circular statement, and as to the other techniques, he used a standard dodge, citing security concerns. That really doesn’t stand up. The techniques in question are not secret. They’ve been published and discussed around the world. Moreover the generals and admirals who provide the nation with expert advice on this issue, and have done so for over 150 years, went up to Capitol Hill at the end of 2006 and spoke openly and unequivocally about these techniques. They said the techniques were unlawful. And they rested their analysis not just on the Geneva Conventions—as Judge Mukasey mistakenly suggested—but on U.S. law and traditions. The Senate should not accept the waffle answers given on torture. It should insist on a clear, unhedged statement before the nomination comes to a vote.

Again, this is not about a hypothetical proposition. It is about whether the current, flagrantly unlawful practices of the CIA will be able to continue. It’s about what is being done on Diego Garcia, or right off shore. Today’s Guardian reports:

Allegations that the CIA held al-Qaida suspects for interrogation at a secret prison on sovereign British territory are to be investigated by MPs, the Guardian has learned. The all-party foreign affairs committee is to examine long-standing suspicions that the agency has operated one of its so-called “black site” prisons on Diego Garcia, the British overseas territory in the Indian Ocean that is home to a large US military base.

Lawyers from Reprieve, a legal charity that represents a number of detainees at Guantánamo Bay, including several former British residents, are calling on the committee to question US and British officials about the allegations. According to the organisation’s submission to the committee, the UK government is “potentially systematically complicit in the most serious crimes against humanity of disappearance, torture and prolonged incommunicado detention”.

Clive Stafford Smith, the charity’s legal director, said he was “absolutely and categorically certain” that prisoners have been held on the island. “If the foreign affairs committee approaches this thoroughly, they will get to the bottom of it,” he said.

Andrew Tyrie, Tory MP for Chichester and a campaigner against the CIA’s use of detention without trial, has also urged the committee to investigate. He said: “Time and time again the UK government has relied on US assurances on this issue, refusing to examine the truth of these allegations for themselves. It is high time our government took its head out of the sand and looked into these allegations.”

And all of this helps explain the probing questions the Judiciary Committee put to Michael Mukasey yesterday. It wasn’t an exercise in abstract reasoning. It was about what’s going on today on the island of Diego Garcia.

Senator Leahy stated that the answers on this one issue were unsatisfactory and a vote on the nomination must await their clarification in writing. I haven’t changed the warmth of my views for Michael Mukasey personally. But this goes to a critical policy issue, and Leahy is taking the only responsible step. These questions require clear, firm answers. The country is waiting for them.

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