CIA Director Can’t Answer Questions on Waterboarding Either

Don’t let all of the news on the Mukasey nomination cause you to overlook the fact that the CIA Director, General Michael Hayden, today defended the Bush Administration’s rendition and interrogation programs, saying that the programs are “as lawful as they are valuable.” Hayden also said that the CIA programs are consistent with our “broad values as a nation.”

When he was directly asked about waterboarding, Hayden hedged. He said, “Judge Mukasey cannot nor can I answer your question in the abstract,” and "I need to understand the totality of the circumstances in which this question is being posed before I can even answer that."

Of course, torture is absolutely not an American value and is illegal under both domestic and international law. That the head of the CIA and a nominee for Attorney General are unwilling to admit that waterboarding is illegal torture should be of great concern to us all.

Slow Motion Suffocation

Here's a look at waterboarding, the technique Attorney General nominee Michael Mukasey declined to call "torture", from the perspective of someone who has undergone it:

Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator.

5 Things Judge Mukasey Should Do

Marty Lederman offers a 5-point plan for Judge Mukasey to win Senate confirmation . . . and respect for doing the right thing by renouncing waterboarding. Meanwhile, the New York Times reports that Senator Specter, the ranking Republican on the Senate Judiciary Committee, has joined Democrats in expressing his concern about Mukasey's testimony. Specter said that the nomination could hinge on Mukasey’s response to a series of questions about Bush Administration policies, including its use of interrogation techniques like waterboarding.

Senator Leahy Asks the White House for the Torture Documents

Here's the letter. And here's the rundown of the goods the Judiciary Committee Chairman is asking for:

1. Please produce any and all Department of Justice directives, memoranda, and/or guidance, including any and all attachments to such documents, regarding detention and/or interrogation methods by the Central Intelligence Agency, the military, or any other component of the United States government, including but not limited to the two memoranda identified by the New York Times on October 4, 2007, as well as the August 2002 Memorandum from the Department of Justice’s Office of Legal Counsel to the CIA General Counsel regarding CIA interrogation methods (the “2nd Bybee memo”).

2. Please provide a non-classified version of the March 13, 2003, Memorandum for William J. Haynes, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to the extent possible consistent with national security requirements.

3. Please produce any and all documents produced by the Department of Justice regarding the legality of specific interrogation tactics, and the legal basis for detention and transfer of terrorism suspects, and the applicability of federal criminal prohibitions on torture and abuse.

4. Please produce any and all Department of Justice documents that interpret, or advise on, the scope of interrogation practices permitted and prohibited by the Detainee Treatment Act or the Military Commissions Act.

5. Please state which of the documents produced in accordance with the above requests remain in effect and which have been withdrawn, replaced or modified. Please produce any and all revisions or modifications.

6. Please produce an index of any and all documents relating to investigations and/or reviews conducted by the Department of Justice into detainee abuse by U.S. military or civilian personnel in Guantanamo Bay, Abu Ghraib prison, or elsewhere.

McCain Rebukes Giuliani on Waterboarding Remark

From the New York Times:

Rudolph W. Giuliani’s statement on Wednesday that he was uncertain whether
waterboarding, a simulated drowning technique, was torture drew a sharp rebuke yesterday from Senator John McCain, who said that his failure to call it torture reflected his inexperience.

“All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today,” Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

In Case You Missed It: AG Confirmation Vote Should Be About Torture

Check out this piece from Professor Jonathan Turley in yesterday's L.A. Times. Turley argues that Judge Mukasey's evasive responses on waterboarding should prompt Senators to vote no on his nomination to be Attorney General.

This confirmation vote should be about torture. It is truly a defining issue, not just of the meaning of torture but of the very character of our country. It is the issue that distinguishes a nation fighting for the rule of law from a nation that is a threat to it. If members of the Senate consider torture to be immoral, they must vote against Mukasey.

Also here's a nice, succinct articulation of the problem with the current Administration's take on torture:

The problem is that Bush defines torture to exclude things like water-boarding. It is like saying you do not rob banks, but then defining bank robbery in such a way that it does not include walking in with a gun and demanding money from the cashier.

Giuliani on Waterboarding: "It depends"

Yesterday, Rudy Giuliani said he didn't know whether waterboarding is torture.

Rudolph W. Giuliani told a group of Iowans on Wednesday night that he favors the “aggressive questioning” of terrorists but that he does not know whether waterboarding, a simulated drowning technique, is torture.

Asked at a community meeting here whether he considered waterboarding torture, Mr. Giuliani said: “It depends on how it’s done. It depends on the circumstances. It depends on who does it.”He went on to say that the way the practice had been described in news reports — “particularly in the liberal media” — he did not believe it should be allowed. But he expressed doubts about whether it had been described accurately.

“America should not allow torture,” Mr. Giuliani said. “But America should engage in aggressive questioning of Islamic terrorists who are arrested or who are apprehended.”

Unfortunately, Giuliani seems to be buying into the Bush Administration's view on waterboarding: when anyone else does it, it's torture, but when we do it, it isn't. But, as John Hutson, former judge advocate general of the Navy said last week after Judge Mukasey's confirmation hearing , "Waterboarding was devised in the Spanish Inquisition. Next to the rack and thumbscrews, it's the most iconic example of torture."

The Supreme Court in Hamdan v. Rumsfeld held that humane treatment obligations of Common Article 3 of the Geneva Conventions apply to “enemy combatants” in U.S. custody. President Bush issued an executive order requiring the CIA to comply with Common Article 3 in its interrogation of detainees. Thus, if the government uses techniques, such as waterboarding, and claims that they are allowed under Common Article 3, then it concedes that the same techniques could be used by other nations on captured US soldiers or citizens.

Finally, the United States has long considered waterboarding to be torture and a war crime.

1. A U.S. military court in 1901 convicted Major Edwin Glenn of subjecting a suspected insurgent in the Philippines to the “water cure.”
2. After World War II, U.S. military commissions prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding.
3. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

Rice: We'll "Try to Do Better in the Future" on Rendition and Torture

Secretary of State Condoleezza Rice acknowledged today that the U.S. mishandled the case of a Canadian engineer who was seized by U.S. officials and taken to Syria to be tortured.

"We do not think that this case was handled as it should have been. We do absolutely not wish to transfer anyone to any place in which they might be tortured."

How's that for an "oops"? Of course, the best way to actually "do better in the future" and make sure that no one is transferred to a place where they are tortured would be for the government to stop the practice of extraordinary rendition. Until there's a change in policy, it looks like the Bush Administration is merely trying to avoid more embarrassing revelations of official ineptitude, and not actually trying to put an end to abuse.

In case you need a refresher on this case, Arar, a Canadian citizen born in Syria, was detained by U.S. officials in New York and then sent to Syria where, according to Canadian officials, he was tortured. Almost a year later, he was released from Syrian prison without charges. The Canadian government has apologized and agreed to pay him almost $10 million. The Bush administration has not apologized, and Arar's name remains on watch lists that prevents him from entering the United States.

A Question for Judge Mukasey: Is Waterboarding Illegal?

Democrats on the Senate Judiciary Committee ask Judge Mukasey to answer once and for all whether waterboarding is illegal.

What is it about waterboarding?

This piece in Slate takes on Judge Mukasey's defense of torture in last week's hearing, and looks at how the Bush Administration's commitment to "absolute secrecy" and "absolute power" has led to its inability to denounce an iconic form of torture.

Not So Basic Training

Last night, Charlie Rose asked CIA Director General Michael Hayden what "enhanced" interrogation techniques were. The transcript is available here -- the whole thing is worth reading if you missed the show. Apparently it's the identity of the person on the receiving end of these "enhanced" techniques that determines whether or not the techniques themselves are objectionable.

Hayden contends that, while the Department of Defense is governed by Army Field Manual, there's a zone of permissible treatment for other detainees beyond the Army Field Manual techniques but within the limits of our treaty obligations and the Constitution. In judging the acceptability of practices in this outer zone, Hayden applies the "shocks the conscience" standard to define torture -- if the treatment doesn't "shock the conscience," then it's not torture or cruel treatment. He then compares the "enhanced" techniques to the training Marines receive on Paris Island, arguing that since this tough training doesn't "shock the conscience" when it's being done to the Marines, the "enhanced" interrogation program similarly isn't "absolutely wrong."

It's unclear to me whether he's arguing that the "enhanced" techniques shouldn't "shock the conscience" because they're being applied to presumed terrorists, or whether the techniques themselves are in fact similar to training exercises that Marines have to perform. Can we hear from the Marines out there about whether techniques like "cold cell" and "long time standing" are now part of basic training?

Gen. Michael Hayden: . . . But the[re] are a whole bunch [of]other activities. I read an interesting piece in today’s Wall Street Journal, and I’m paraphrasing and I probably won’t get it perfectly right. But they were talking about the shock the conscience standard, all right? And they pointed out that if they took you and me, all right, people of our age, and put us, you and me, through what Marine Corps recruits at Paris Island and forced us to do that, that probably would shock the conscious. But it’s not illegal to do it to Marine Corps recruits, all right? That same behavior is not absolutely wrong --

Charlie Rose: Are you talking about things like sleep deprivation, cold and extreme, and --

Gen. Michael Hayden: All the things, all the stresses that we put these recruits through, all right? But we don’t think that’s torture or cruel and degrading --

Charlie Rose: But I don’t think when people think about torture that’s what they’re talking about. You know? This leads to another --

Gen. Michael Hayden:Well, that’s a wonderful point because maybe that is what I’m talking about.

Charlie Rose:So we’re saying we do --

Gen. Michael Hayden:[unintelligible]

Charlie Rose:-- do that it’s torture. If we do that, it’s not torture, that’s what you’re saying?

Gen. Michael Hayden: Again, I’m not going to talk about --

Charlie Rose:I know that, but what you just said to me. But there is -- I mean, if -- I -- you would say to me, clearly the United States does not torture.

Gen. Michael Hayden: Right.

Charlie Rose:T he president said that. The United State’s does not
torture.

Gen. Michael Hayden: That’s right.

Two Problems with Torture

In the Pittsburgh Post-Gazette, a former army interrogator explains that torture is not only wrong, it doesn't work.

The Bush Administration’s Litmus Test on Torture and Official Cruelty

Yesterday’s testimony by Attorney General nominee Judge Michael Mukasey raises the disturbing possibility that the Bush Administration has a new litmus test for an Attorney General: to be the top law enforcement official in the current Administration, a nominee must defend policies of official cruelty. Judge Mukasey’s repeated refusal to state that waterboarding is illegal was just one of several troubling statements from his confirmation hearing. Judge Mukasey’s unwillingness to stray from the White House line on torture and official cruelty suggests that this is an essential precondition to serving in senior policy-making positions in this administration.

Interrogation techniques

What Judge Mukasey said: “I don't think that I can responsibly talk about any technique here, because of the very -- I'm not going to discuss, and I should not -- I'm sorry, I can't discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar, when there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that.” (Senate Judiciary Committee Hearing, 10/18/07)

Human Rights First’s Response:

It is troubling that Judge Mukasey showed more concern for officials’ careers than he did over the underlying issue of official cruelty.

• The fact that illegal techniques may have been “authorized” doesn’t make them legal. Just following orders is NOT a defense to torture.
• Making war crimes exempt from prosecution in the U.S. through narrow interpretations of the law or new statutes actually leaves American intelligence officers more vulnerable to overseas prosecutions. As a former CIA officer, Mitt Bearden, has written of the Military Commissions Act of 2006:

[T]he Bush administration, in its effort to immunize itself against future prosecution by changing the definition of war crimes for which U.S. government defendants may be prosecuted, has opened the door for such prosecutions outside the United States. Like a hacker at golf who blasts from fairway sand traps to knee-high rough, the administration is getting farther and farther "out of bounds."

The Military Commissions Act of 2006, railroaded through a rubber stamp Congress in September, 2006, and signed into law by the president in October, in effect, establishes that several categories of what were war crimes in the past, under Common Article 3 of the Geneva Conventions, can no longer be punished under U.S. law. This may have given some comfort to those who felt exposed to prosecution under existing U.S. law, but they should be wary of getting too complacent, particularly if they ever travel beyond the 12-mile limit of America's continental shelf.

The politicians may be marginally protected, as usual. But the men and women of the C.I.A. will be dangerously exposed and will have once again been left holding
the bag. (Huffingtonpost.com, 10/9/07)

A “Different” Kind of Detainee

What Judge Mukasey said: “What the experience is of people in the Judge Advocate General's Corps who are enormously well-disciplined and very skilled, what that experience has been with captured soldiers, captured military people from enemies we fought in the past may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person.” (Senate Judiciary Committee Hearing, 10/18/07)

Human Rights First’s Response:

• Judge Mukasey seems to be suggesting that the President can ignore the law because the conflict in which we are currently engaged is “different”.
• Where does this line of reasoning end? If the conflict the U.S. faces now is “different” from past conflicts, does that mean the laws no longer apply? And who should decide these things?

The Supreme Court’s Hamdan Decision

What Judge Mukasey said:

DURBIN: But I'm speaking to the Geneva Conventions and the judge advocates general said the techniques that I described to you violated Common Article 3, and this is the baseline test that applies to everyone, not just soldiers. And I believe that the Supreme Court agreed with that conclusion in Hamdan. Do you see that differently?

MUKASEY: What part of Common Article 3 the Supreme Court found in Hamdan was applicable through, I believe through the Universal Code of Military Justice, unless I'm confusing my cases. I can't, as I sit here, recall precisely what part of
Article 3 the Supreme Court found applicable. I thought they were talking about the need for a trial and for an opportunity for a detainee to get a hearing. I did not think that that concerned interrogation techniques. (Senate Judiciary Committee
Hearing, 10/18/07)

Human Rights First’s Response:

• The Supreme Court said unequivocally that Common Article 3 of the Geneva Conventions applies to the conflict, not merely that its provisions on fair trial requirements apply to the conflict.
• After the Hamdan decision, the Department of Defense applied Common Article 3 to all detentions through:
• a memo from Deputy Secretary of Defense Gordon England, “Application of Common Article 3 of the Geneva Conventions to Detainees in the Department of Defense, dated July 7, 2006
• the new DOD Directive 2310.01E on DOD’s detainee program, released on Sept. 6, 2006
• the new Army Field Manual on Human Intelligence Collector Operations, also released Sept. 6, 2006, which includes provisions on intelligence interrogation
  

Waterboarding

What Judge Mukasey said:

SEN. SHELDON WHITEHOUSE, D-R.I.: Just to finish that thought: So is water-boarding constitutional?

MUKASEY: I don't know what's involved in the technique. If water-boarding is torture, torture is not constitutional.

WHITEHOUSE: If water-boarding is constitutional is a massive hedge.

MUKASEY: No, I said, if it's torture. I'm sorry. I said, if it's torture.

WHITEHOUSE: If it's torture? That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion on whether water-boarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?

MUKASEY: If it amounts to torture, it is not constitutional.

WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic. (Senate Judiciary Committee Hearing, 10/18/07)

Human Rights First’s Response: "Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history," said retired Rear Adm. John D. Hutson, a former Navy lawyer and dean of Franklin Pierce Law Center in Concord, N.H. "It has been repudiated for centuries. It's a little bit disconcerting to hear now that we're not quite sure where waterboarding fits in the scheme of things." (AP, 10/19/07)

At the same time, the White House seemed pleased with the testimony: White House Spokesman Tony Fratto said Judge Mukasey "is not in a position to discuss interrogation techniques" that are classified, such as waterboarding. Mukasey "did not rule in or out any specific interrogation techniques," Fratto said. (AP, 10/19/07)

Why Judge Mukasey’s Definition of Torture Matters

Here’s how President Bush defined torture at Wednesday’s press conference.

Q Thank you, sir. A simple question.

THE PRESIDENT: Yes. It may require a simple answer.

Q What's your definition of the word "torture"?

THE PRESIDENT: Of what?

Q The word "torture." What's your definition?

THE PRESIDENT: That's defined in U.S. law, and we don't torture.

Q Can you give me your version of it, sir?

THE PRESIDENT: Whatever the law says.

If confirmed, Judge Mukasey will be advising the President about what the law says.

Rule of Law?

Let me see if I've got this: the Bush Administration, having succeeded in muddying the waters about what the definition of torture is, now claims that the very lack of clarity it created is a reason no one can be held accountable for violating the rights of an American citizen arrested on American soil? That seems to be the situation described in this Christian Science Monitor piece on the Padilla case.

Given the government's reliance on "clearly established" law, the Padilla civil case could present an ironic twist in the long and heated debate over Bush administration tactics in the war on terror. White House and Justice Department officials worked hard in the years since the 9/11 attacks to maximize legal flexibility in dealing with detainees. They sought to clarify the law in a way that would protect interrogators, soldiers, and other US officials from civil suits and war-crimes charges.

Instead of clarification, the efforts triggered debates both within and outside the administration over what the law should be.

Now, legal analysts say, the administration may rely on the lingering uncertainty to help shield US officials from legal liability. "It will make it a lot harder for plaintiffs [like Padilla] to win a lawsuit because there is a much better argument that the relevant laws aren't clearly established," Professor Vladeck says.

"Even though Padilla's rights may have been violated, the real question is whether it was clearly established that what the government was doing to him was illegal," Vladeck says. "One can't help but wonder based on the torture debate whether anything was clearly established."

Boston Globe: The nominee is unresponsive

Here's the Boston Globe on Judge Mukasey's disappointing performace in front of the Judiciary Committee yesterday:

AFTER REASSURING senators Wednesday that he would not take orders from political aides in the Bush White House, Michael Mukasey yesterday gave Judiciary Committee members reason to wonder if he would be much different from former attorney general Alberto Gonzales on other issues. Gonzales resigned under fire in August in the face of allegations that he presided over a house-cleaning of nine US attorneys for partisan political reasons and then made misrepresentations in testimony to Congress.

In the second day of his confirmation hearing to succeed Gonzales, Mukasey, a former federal judge, declined to say whether the simulated drowning technique of waterboarding is torture. He also repeated President Bush's belief that the resolution passed by Congress just after Sept. 11, 2001, gives the president the right to ignore a 1978 law banning warrantless wiretapping of Americans.

His answer on waterboarding - "if it amounts to torture, it is not constitutional" - disappointed Senator Sheldon Whitehouse of Rhode Island. "That is a massive hedge," Whitehouse said. "I am very disappointed in that answer. I think it is purely semantic."

. . .

Nothing that Mukasey said, or left unsaid, in his testimony amounts to the bombshell that committee members feel would be required to turn the panel against his confirmation. He might indeed be the most independent and least ideological nominee that Bush would ever name. But his testimony provided little evidence that he would act decisively to find out how, under Gonzales, the Justice Department became an enforcement arm of the White House political operation. The country needs a check on the Bush-Cheney campaign to expand presidential power, not another enabler.

Judge Mukasey Gives Troubling Answers on Torture

In his confirmation hearing today, Judge Mukasey made several remarks that will give pause to those who want to bring an end to U.S. policies authorizing torture and cruel treatment.

Most alarmingly, Judge Mukasey refused to say that the humane treatment provisions of Common Article 3 of the Geneva Conventions apply to every prisoner in U.S. custody – including in the custody of the C.I.A. Common Article 3 prohibits a range of cruel practices, including waterboarding. Mukasey’s assertion that some techniques beyond those which are permitted by the Army Field Manual may be used implies that forms of coercive interrogation which violate Common Article 3 may be practiced by government agencies, including the C.I.A.

In addition, despite repeated questioning, Judge Mukasey declined to acknowledge that waterboarding is a form of torture prohibited by law. Although he was asked by Senators Durbin, Leahy, and Whitehouse to elaborate on his views on waterboarding, Judge Mukasey only said, "If waterboarding is torture, then waterboarding is not constitutional." This drew a rebuke from Sen. Whitehouse, who accused him of hedging.

The issue is clear: waterboarding is a form of coercion which violates U.S. legal obligations under Common Article 3 of the Geneva Conventions. It is illegal for anyone acting under the color of US law to engage in this practice. (In today’s questioning, Senator Durbin outlined the history of how the United States prosecuted as war criminals those who used this technique in past conflicts. We’ll post the transcript when it’s available. For more, see the Human Rights First and Physicians for Human Rights report explaining why “enhanced” interrogation techniques amount to torture, here.)

Of further concern is Judge Mukasey’s suggestion that the current situation faced by the country might have rendered the experience of the U.S. military – the organization in our country that actually has a long history of detaining and interrogating prisoners – irrelevant. Senator Durbin had questioned Judge Mukasey on whether he believed that a series of specific techniques, including waterboarding, amount to torture. Durbin read the testimony of the top lawyers of every branch of the armed services who clearly stated that specific techniques that reportedly are in use as part of the “enhanced” interrogation program violate the Geneva Conventions. Mukasey replied that, while he wouldn't question the determination of the JAG officers about what actions violate the Geneva Conventions, the experience of the JAGs in fighting past conflicts differs from the experience of the United States today, since we currently face unlawful enemy combatants.

Many would take issue with Judge Mukasey’s suggestion that the fight against al-Qaeda necessitates our abandoning the principles that we were able to follow to success in World War II, and other conflicts. And, the Supreme Court ruled in Hamdan vs. Rumsfeld that even enemy combatants held in the fight against terrorism are entitled to the basic protections of Common Article 3 of the Geneva Conventions. Judge Mukasey’s troubling assertion that the experience of the JAGs is outdated doesn’t change the law.

Another troubling aspect of Judge Mukasey’s testimony today was his claim that he didn’t think the Supreme Court's ruling in Hamdan reached interrogation techniques.

In Hamdan, the Supreme Court found that Common Article 3 of the Geneva Conventions applies to persons detained in the armed conflict with Al Qaeda and the Taliban. In fact, in response to Hamdan, the Department of Defense issued a directive requiring that all DoD practices and procedures, including those affecting detainee treatment and interrogation, be reviewed to ensure that compliance with Common Article 3.

(For a more detailed analysis, Professor Marty Lederman of Georgetown University has called “implausible” the suggestion that the holding in Hamdan might not reach interrogations, writing: “The Court's holding in section VI-D-ii of the majority opinion is that the conflict with Al Qaeda is "not of an international character," as that phrase is understood in Common Article 3, and that therefore Common Article 3 is, in Justice Kennedy's words, "binding law" that applies to the conflict against Al Qaeda. This holding necessarily applies to Common Article 3 as a whole, and therefore it implicates subsections 1(a) and 1(c) of CA3; there's no theory of severability on which that interpretation could be limited to subsection 1(d) -- so that parts of CA3 are applicable to this conflict, but others are not.”)

Judge Mukasey has been outspoken in his opposition to torture, but hard to pin down on what techniques he thinks actually constitute torture. If he is confirmed as the next Attorney General, which seems likely at this point in time, it’s going to be up to Americans to continue to push for changes in policy that put an end to torture and cruel treatment once and for all. Take the first step. Sign the Elect to End Torture ’08 petition.

What's Your Definition of Torture?

Here's how President Bush defined torture at yesterday's press conference.

Q Thank you, sir. A simple question.

THE PRESIDENT: Yes. It may require a simple answer.

Q What's your definition of the word "torture"?

THE PRESIDENT: Of what?

Q The word "torture." What's your definition?

THE PRESIDENT: That's defined in U.S. law, and we don't torture.

Q Can you give me your version of it, sir?

THE PRESIDENT: Whatever the law says.

Of course, the Bush Administration has done its utmost to define "torture" down to the point where even horrific practices do not meet the definition. In fact, according to the President's July 20th Executive Order on CIA interrogations, as long as the techniques are being used with the aim of gathering intelligence and not merely to satisfy sadistic impulses of the interrogator, everything is allowed.

This exchange reveals what's at stake with the Mukasey confirmation process. The next Attorney General will be advising the President on what the law says. We'll be posting shortly on some of the problems with the answers Judge Mukasey just gave in his Senate confirmation hearing on what he thinks the definition of torture is.

Judge Mukasey: The President Can't Authorize Torture

In response to a question from Sen. Arlen Specter (R-PA), Judge Mukasey said this morning that "The president can't authorize torture because torture is barred both by statute and the constitution." This is definitely a more accurate take on the law than we've seen from previous Department of Justice opinions. However, we're still listening to hear more about what Judge Mukasey thinks constitutes torture. Does he consider "enhanced" interrogation techniques to be tantamount to torture, as a recent report by Human Rights First and Physicians for Human Rights shows?

Judge Mukasey "Too General" on Torture

From today's New York Times editorial:

Mr. Mukasey’s discussion of torture was good as far as it went, but it was too general. The administration has said that it opposes torture, but what matters is how it defines torture. It is important for Mr. Mukasey to oppose not only the word torture, but acts that properly fall under the label.

We'll be listening today to hear if Judge Mukasey can assure us that he would uphold the law if he is confirmed. Hopefully, we'll hear him provide more specifics on what he believes constitutes torture.

Judge Mukasey Opposes Habeas Corpus Rights for Guantanamo Prisoners

From today's hearing:

GRAHAM: Would you advise the President of the United States to allow unlawful enemy combatants to have habeas rights, to grant them habeas corpus rights at Guantanamo Bay?

MUKASEY: I would not advise the President to grant rights beyond those that they already have.

Judge Mukasey Doesn't Comment on Waterboarding

From the Judiciary Committee Hearing right now: Judge Mukasey declined to make comments on waterboarding in front of the Senate Judiciary Committee hearing, saying that too little is known about its use. However, he did say: "I would be uncomfortable with any trial that uses evidence that's been coerced."

Sen. Durbin Asks Judge Mukasey about Torture

It's live now on C-Span 3, and streaming online at cspan.org.

Attorney General Nominee Calls the Bybee Memo a "Mistake'

The video is available here:

http://www.youtube.com/watch?v=bxuf30PpgAU

Questions Remain on CIA Investigation

The L.A. Times reports that an attempt by a CIA spokesperson to convince Senate aides that everything is on the up and up with the highly unusual investigation of the CIA Inspector General failed to accomplish its goal. Senate staffers remain concerned that the investigation of the investigator was prompted by the IG's decision to take a critical look at the CIA's detention and interrogation policies.

Check out this piece at Slate for an explanation of why it's so important for an inspector general to be left free to do his job.

Senators Ask for Withdrawal of Nominee with Torture Memo Ties

Yesterday, Sens. Dick Durbin (D -Ill.), Russ Feingold (D -Wis.) and Edward Kennedy (D - Mass.) requested that President Bush withdraw the nomination of Steven Bradbury to the Office of Legal Counsel at the Department of Justice over concerns of his role in secret DoJ memos authorizing torture. Meanwhile, the confirmation hearing for President Bush's Attorney General nominee, Judge Michael Mukasey, begins at 10:00 today. We'll be providing updates from the hearing throughout the day.

Torture Is Not Who We Are

Anne-Marie Slaughter knows what kind of president she wants to see leading the country in 2009. If you agree with her, sign our petition.

I can argue why ruling out torture and humiliating and degrading treatment is strongly in American interests, how interrogation of this sort rarely works. I can explain how the damage it does to us in the world far outweighs any specific information that we get. Indeed, even if we get information that actually succeeds in stopping a particular attack today, we are breeding legions of new terrorists tomorrow. I can also point out how seriously we endanger our own soldiers when they are captured abroad. I can talk about how fundamentally we degrade ourselves, beginning with the men and women ordered to carry out such treatment and ending with our very identity as a nation. As President Theodore Roosevelt said in his 1906 State of the Union address, "No man can take part in the torture of a human being without having his own moral nature permanently lowered."

I can make those arguments. I believe them. But what I really want is an America that will simply stand up and say, as President George W. Bush did when he saw the Abu Ghraib photographs, that this is not who we are. It is time for a president who means it.

Bill O’Reilly Goes After the Boss on Torture

Bruce Springsteen seems to have provoked the ire of commentator Bill O’Reilly by speaking out to say that torture is “un-American”.

O’Reilly’s blaring defense of torture (“In a perfect world, a noble nation like the USA would not need to submerge killers in water. But thousands of dead Americans have changed the rules.”) is so over the top that it might even sound discordant to the President and his defenders who continue to maintain – despite mounting evidence to the contrary -- that the United States doesn’t actually use torture.

Make no mistake: it’s Springsteen – and not O’Reilly—who is in tune with the country on this issue. The majority of Americans oppose the use of torture. So do America’s current and former military leaders. Retired C.I.A. officers have discussed the danger posed by policies authorizing torture. And those O’Reilly labels as inhabiting “the dark world of the radical left” include officials who served in President Reagan’s Administration.

In this column, O'Reilly just can't seem to hit any of the right notes.

Inspecting the Inspectors at the CIA

The director of the CIA is investigating the man responsible for investigating the CIA? The New York Times suggests this unprecedented inquiry is due to the Inspector General's aggressive investigations of CIA detention and interrogation practices.

A report by [CIA Inspector General] Mr. Helgerson’s office completed in the spring of 2004 warned that some C.I.A.-approved interrogation procedures appeared to constitute cruel, inhuman and degrading treatment, as defined by the international Convention Against Torture.

Some of the inspector general’s work on detention issues was conducted by Mary O. McCarthy, who was fired from the agency last year after being accused of leaking classified information. Officials said Mr. Helgerson’s office was nearing completion on a number of inquiries into C.I.A. detention, interrogation, and “renditions” — the practice of seizing suspects and delivering them to the authorities in other nations.

The L.A. Times reporting expresses the same concern.

The move has prompted concerns that Hayden is seeking to rein in an inspector general who has used the office to bring harsh scrutiny of CIA figures including former Director George J. Tenet and undercover operatives running secret overseas prison sites.

The CIA Should Take the Lead of the Defense Department and Abide by the Rules

In case you missed it, this post by former CIA officer Milt Bearden at Huffingtonpost brings an important perspective to the debate on torture: that of CIA officers themselves. The piece is worth reading in full, but here are some key insights about how the current Administration's torture policies risk leaving American intelligence officers out to dry:

Here is the crunch for the CIA: as eminent British lawyer Philippe Sands writes in his coming book, The Torture Team, "the simple fact of establishing immunity under the 2006 (Military Commissions) Act opens the door to investigations and possible prosecutions abroad. So long as the U.S. is able to investigate and prosecute grave breaches of Geneva (Conventions, Common Article 3), the courts of other countries would be likely to decline to exercise jurisdiction. With that possibility gone, the prospects for foreign investigation increase considerably, as Senator Pinochet found to his cost in 1999."

There are already more than two dozen CIA officers under indictment by an Italian court for the extraordinary rendition of Osama Mustafa Hassan Nasr (known as Abu Omar). Though the trial has been stayed, pending a ruling on Italian secrecy issues, this is still a very big deal. Just imagine the historical irony of the en masse indictment of 26 U.S. Government employees by a NATO ally!

Regardless of how the Italian court case plays out, it is only the beginning. One can expect a torrent of cases to be filed against the men and women of the CIA in the coming months and years. They'll have to get used to either staying pretty close to home, or taking their ski holidays in North Korea. Stepping off a plane anywhere in Europe will become a little dicey.

The CIA's men and women are putting themselves at enough risk already. They deserve better and we owe them more than this. The sway of feckless leadership at CIA has gone on long enough. It's time that the CIA takes the Defense Department lead and play by the rules again.

Keeping up with the News on Guantanamo and Rendition

It can be difficult to keep up with the news these days! As the fallout over the new DoJ torture memos continues, other legal developments in the Bush Administration's war on terror continue. This week, the Administration filed a brief to the Supreme Court arguing that detainees at Guantanamo “enjoy more procedural protections than any other captured enemy combatants in the history of warfare.” For HRF's take on just how far-fetched that assertion is, go here.

Meanwhile, the reaction to the Supreme Court's rejection of the El-Masri rendtion case has been negative on both sides of the country. The New York Times calls it a Supreme Disgrace. And the L.A. Times says that the United States still has an obligation to make amends – and Congress has an obligation to shut down the CIA program.

Whatever the explanation, the court's refusal to hear El-Masri's appeal shouldn't be the end of the story. This country has an obligation to apologize to -- and compensate -- victims of an anti-terrorist operation gone awry. And judicial inaction actually strengthens the case for action by Congress to prevent the CIA from committing such outrages in the future. Even when there is no case of mistaken identity, the United States shouldn't be spiriting suspects away to secret prisons abroad where they can be subjected to "enhanced interrogation techniques."

Boston Globe: Release the Torture Memos

The editors of the Boston Globe today join the overwhelming chorus of Americans protesting the Bush Administration's new torture memos. The paper calls on Congress to demand the release of the memos and an explanation from the Bush Administration -- if it can provide one -- of how the memos comply with the law.

The Bush administration let Congress pass a law setting standards for interrogations that the administration had already decided - in secret - that it could ignore. Congress will deserve the low approval ratings it gets from the public if it lets itself be made a mockery of in this way.

Poll: 42% of Americans Believe the U.S. Is Torturing Prisoners

According to a poll conducted by Rasmussen, 42% of Americans believe the United States currently tortures prisoners captured in the fight against terrorism. 30% disagree and say the U.S. does not torture prisoners while 28% are not sure.

53% say that the U.S. should not torture prisoners while 27% believe it should.

FACT CHECK: Fran Townsend

Fran Townsend, assistant to the president for counter-terrorism and homeland security tries – and fails – to make the case for the Bush Administration’s “enhanced” interrogation program today.

FACT CHECK: Fran Townsend

Townsend: “[T]he Department of Justice has determined that [the CIA interrogation program] fully complies with U.S. law and our international obligations.”

• FACT: Principled lawyer predicts the Department of Justice would come to be “ashamed” of its opinion on torture. “Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.” (New York Times, 10/4/07)

Townsend: The program is “effective”.

• FACT: According to real interrogators, torture doesn’t produce good information. “The best and most reliable information comes from people who are relaxed and perceive little threat. ‘Why would you use evasive training tactics to elicit information?’ says Dr. Michael Gelles, former chief psychologist of the Naval Criminal Investigative Service. The [harsh interrogation tactics used by the CIA] aren't just morally and legally wrong, critics say; they're tactically wrong. They produce false leads and hazy memories. [Mitchell and Jessen] argue, 'We can make people talk,'" says [Steve] Kleinman [an Air Force Reserve colonel and expert in human-intelligence operations] ‘I have one question. 'About what?'’ As one military member who worked in the [intelligence gathering] community says, ‘Getting somebody to talk and getting someone to give you valid information are two very different things.’" (Vanity Fair, 7/17/07)

• FACT: No systematic study has ever shown that the infliction of torture or coercion elicits reliable information or actionable intelligence. According to the U.S. Army's own field manual on interrogation, published in September 2006, torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear." As veteran FBI interrogator Joe Navarro put it, "the only thing torture guarantees you is pain.” (Human Rights First, Primetime Torture Project)

Townsend: “Appropriate members of Congress have been fully briefed on the program, both before the director of the CIA sought the authority and after the legal parameters of the program were defined.”

• FACT: Not according to Members of Congress.
  
  Sen. John Rockefeller (D-W.Va.), chairman of the Senate Intelligence Committee, said he was not briefed. "I find it unfathomable that the committee tasked with oversight of the C.I.A.'s detention and interrogation program would be provided more information by The New York Times than by the Department of Justice," Rockefeller told acting Attorney General Peter Keisler. (New York Times, 10/5/07)
  
  House Speaker Nancy Pelosi (D-Calif.) said she has not been briefed. Asked whether she'd been briefed about the secret memos, Pelosi said, "No, not about the secret memos." (FoxNews, 10/7/07)
  
  Rep. Jane Harman (D-Calif.), the ranking member of the House Intelligence Committee in 2005 denies being briefed. "We were not fully briefed. We were told about operational details but not these memos. Jay Rockefeller said the same thing, and I associate myself with his remarks. And we want to see these memos." (thinkprogress.com, 10/7/07)
  
  Congressman Alcee Hastings, (D-FL), member of the House Select Committee on Intelligence says the briefing process on detainees has been inadequate. “’We talk to the authorities about these detainees, but, of course, they’re not going to come out and tell us that they beat the living daylights out of someone.’ He recalled learning in 2003 that Mohammed had been captured. ‘It was good news,’ he said. ‘So I tried to find out: Where is this guy? And how is he being treated?’ For more than three years, Hastings said, ‘I could never pinpoint anything.’ Finally, he received some classified briefings on the Mohammed interrogation. Hastings said that he ‘can’t go into details’ about what he found out, but, speaking of Mohammed’s treatment, he said that even if it wasn’t torture, as the Administration claims, ‘it ain’t right, either. Something went wrong.’” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)
  

A Close Look at What the Candidates Are Saying on Torture

Today's Washington Post characterizes as "vague" statements by Senator Clinton about how she would handle the C.I.A.'s interrogation program if elected. On his blog, Greg Sargent posts the entire transcript of the question and answer, including portions not included in the Post article where Clinton says, "I think we have to draw a bright line and say ‘No torture – abide by the Geneva conventions, abide by the laws we have passed,' and then try to make sure we implement that." Check it out. There is a growing consensus in this country that we need to put an end to torture. It’s going to be up to citizens, bloggers, activists, and journalists to take a close look at what is being said about torture on the campaign trail, how it is said, and how it is reported.

At Elect to End Torture ’08, we are continuing to seek clarity -- from ALL of the candidates – about their commitment to putting an end to torture and cruel treatment

President Carter: The U.S. has abandoned the basic principle of human rights

Former President Carter accuses President Bush of coming up with his own definitions for torture and human rights. From CNN:

Carter says U.S. tortures prisoners

WASHINGTON (CNN) -- The United States tortures prisoners in violation of international law, former President Carter said Wednesday.

"I don't think it. I know it," Carter told CNN's Wolf Blitzer.

"Our country for the first time in my life time has abandoned the basic principle of human rights," Carter said. "We've said that the Geneva Conventions do not apply to those people in Abu Ghraib prison and Guantanamo, and we've said we can torture prisoners and deprive them of an accusation of a crime to which they are accused."

Carter also said President Bush creates his own definition of human rights.

Carter's comments come on the heels of an October 4 article in The New York Times disclosing the existence of secret Justice Department memorandums supporting the use of "harsh interrogation techniques." These include "head-slapping, simulated drowning and frigid temperatures," according to the Times.

The White House last week confirmed the existence of the documents but would not make them public.

Responding to the newspaper report Friday, Bush defended the techniques used, saying, "This government does not torture people."

Asked about Bush's comments, Carter said, "That's not an accurate statement if you use the international norms of torture as has always been honored -- certainly in the last 60 years since the Universal Declaration of Human Rights was promulgated.

"But you can make your own definition of human rights and say we don't violate them, and you can make your own definition of torture and say we don't violate them."

After reading a transcript of Carter's remarks, a senior White House official said, "Our position is clear. We don't torture."

The official said, "It's just sad to hear a former president speak like that."

State Secrets Privilege Trumps Accountability in Rendition Case

Yesterday, the Supreme Court decided not to take up the case of a man who was allegedly kidnapped and tortured by the CIA in a case of mistaken identity. The Bush Administration claimed that allowing the case to go to trial would risk revealing state secrets. This means there will be no justice in American courts for Khaled El-Masri, a German citized who U.S. officials admitted to the German Chancellor was seized by mistake and whose account was found to be substantially accurate in a June 2006 report by the Council of Europe.

Go here for more information on the extraordinary rendition program. And here's HRF's Washington director's take on the case:

"When the government hides behind the state secrets doctrine to evade accountability for abuses, and the courts accept that justification despite clear evidence of wrongdoing, it undermines the whole idea of enforcement of human rights," agreed Elisa Massimino, the Washington director of Human Rights First.

"Congress has let the CIA programme of rendition and secret detention go on long enough. It is time to bring this practice under control," she added.

The Wall Street Journal Gets It Wrong on Torture

Reading today’s Wall Street Journal editorial on torture is a through the looking glass experience for anyone concerned with the truth in the debate over U.S. interrogation policies. Time and again, the Journal’s editors get the facts wrong in their efforts to defend the Bush Administration’s torture policies. Here’s the truth behind some of their more glaring errors.

Tortured Arguments

October 9, 2007; Page A16

WSJ’s Tortured Argument: “So, according to newspaper reports, the Justice Department's Office of Legal Counsel responded by detailing that slapping, hypothermia, sleep deprivation and so-called stress positions are allowed. Are these torture?”

• FACT: Yes, these methods are torture.

• FACT: U.S. officials who authorize or use “enhanced” interrogation techniques risk violating U.S. law and could face criminal prosecution. (Leave No Marks: ‘Enhanced’ Interrogation Techniques and the Risk of Criminality, Human Rights First, Physicians for Human Rights, 8/2/07)

• FACT: The International Committee of the Red Cross has reportedly issued a report calling the C.I.A. techniques tantamount to torture. “Congressional and other Washington sources familiar with the report said that it harshly criticized the C.I.A.’s practices. One of the sources said that the Red Cross described the agency’s detention and interrogation methods as tantamount to torture, and declared that American officials responsible for the abusive treatment could have committed serious crimes. The source said the report warned that these officials may have committed “grave breaches” of the Geneva Conventions, and may have violated the U.S. Torture Act, which Congress passed in 1994. The conclusions of the Red Cross, which is known for its credibility and caution, could have potentially devastating legal ramifications.” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)

• FACT: “Enhanced” interrogation techniques violate the law. For a detailed look at how and why these practices are illegal, check out HRF Washington Director Elisa Massimino’s testimony before the Senate Select Committee on Intelligence on 9/25/07

WSJ’s Tortured Argument: “What's really at issue here is whether U.S. officials are going to have even the most basic tools to interrogate America's enemies.”

• FACT: World War II interrogators have recently spoken out saying they had the tools they needed to interrogate the Nazis – without resorting to torture.
• "’We got more information out of a German general with a game of chess or Ping-Pong than they do today, with their torture,’ said Henry Kolm, 90, an MIT physicist who had been assigned to play chess in Germany with Hitler's deputy, Rudolf Hess.” (Washington Post, 10/6/07)
• "’During the many interrogations, I never laid hands on anyone,’ said George Frenkel, 87, of Kensington. ‘We extracted information in a battle of the wits. I'm proud to say I never compromised my humanity.’" (Washington Post, 10/6/07)
  
  
• FACT: Experienced interrogators have testified that they possess the tools to garner intelligence using a “relationship-based” model. (See the testimony of interrogator Steven M. Kleinman before the Senate Select Committee on Intelligence, 9/25/07)

WSJ’s Tortured Argument: “Newspaper accounts of the 2005 memos say "waterboarding," or simulated drowning, is also allowed in the memos, which reflects the CIA's view that this is especially effective in breaking hard cases rapidly. Reportedly, this technique was used against al Qaeda masterminds Khalid Sheikh Mohammed and Abu Zebaydah. Waterboarding, by the way, is also part of interrogation-resistance training for some Americans, to prepare them to face the enemy if captured.”

• FACT: The training mentioned by the WSJ was designed to prepare Americans for torture following capture – torture designed to produce false confessions, not intelligence. “Each branch of the U.S. military offers a variant of the sere [Survival, Evasion, Resistance, Escape – a program which trains soldiers to endure captivity in enemy hands] training curriculum. The course simulates the experience of being held prisoner by enemy forces who do not observe the Geneva Conventions. The program evolved after American G.I.'s captured during the Korean War made false confessions under torture. Sure enough, those in sere training found that they would say anything to get the torment to stop.” (Vanity Fair, 7/17/07)

• FACT: Standard, humane interrogation reportedly led to the collection of intelligence from Abu Zubaydah. “Zubaydah was stabilized at the nearest hospital, and the F.B.I. continued its questioning using its typical rapport-building techniques. An agent showed him photographs of suspected al-Qaeda members until Zubaydah finally spoke up, blurting out that "Moktar," or Khalid Shaikh Mohammed, had planned 9/11. He then proceeded to lay out the details of the plot. America learned the truth of how 9/11 was organized because a detainee had come to trust his captors after they treated him humanely. It was an extraordinary success story. But it was one that would evaporate with the arrival of the C.I.A's interrogation team.” (Vanity Fair, 7/17/07)

• FACT: Zubaydah “myth” is being used to further the false idea that torture works. “The bitterest irony is that the tactics seem to have been adopted by interrogators throughout the U.S. military in part because of a myth that whipped across continents and jumped from the intelligence to the military communities: the false impression that reverse-engineered sere tactics were the only thing that got Abu Zubaydah to talk.” (Vanity Fair, 7/17/07)

WSJ’s Tortured Argument: “If Congress wants to outlaw this technique, it can do so. But it then has an obligation to say what is allowed.”

• FACT: Unbeknownst to the Wall Street Journal, Congress already has outlawed this technique. During congressional debate, Senators Warner emphasized that Common Article 3’s broad prohibitions against inhumane treatment remain binding on all U.S. personnel, military and the CIA. (Congressional Record, 9/28/06)

WSJ’s Tortured Argument: “As it stands now, the scolds in Congress and the Beltway press have decided to impose their view that no pressure tactics are ever necessary or justified.”

• FACT: Torture is never necessary or justified.

WSJ’s Tortured Argument: “The notion that the U.S. goes around unnecessarily ‘torturing’ people without any rationale whatsoever is so absurd that it is almost never stated explicitly. But it is equally awkward for the Administration's critics to admit that the "coercive" methods listed in these memos to induce cooperation from al Qaeda operatives may actually work.”

• FACT: It would be awkward because it’s not true – those with experience in interrogations say torture doesn’t work. “The best and most reliable information comes from people who are relaxed and perceive little threat. ‘Why would you use evasive training tactics to elicit information?’ says Dr. Michael Gelles, former chief psychologist of the Naval Criminal Investigative Service. The sere tactics aren't just morally and legally wrong, critics say; they're tactically wrong. They produce false leads and hazy memories. [Mitchell and Jessen] argue, 'We can make people talk,'" says [Steve] Kleinman [an Air Force Reserve colonel and expert in human-intelligence operations] ‘I have one question. 'About what?'’ As one military member who worked in the sere community says, ‘Getting somebody to talk and getting someone to give you valid information are two very different things.’" (Vanity Fair, 7/17/07)
  
  FACT: General Petraeus has said torture doesn’t work. Here’s General Petraues on torture: "Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary." (Letter from General Petraeus to U.S. troops in his command, 5/10/07)
  
  FACT: No systematic study has ever shown that the infliction of torture or coercion elicits reliable information or actionable intelligence. According to the U.S. Army's own field manual on interrogation, published in September 2006, torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear." As veteran FBI interrogator Joe Navarro put it, "the only thing torture guarantees you is pain.” (Human Rights First, Primetime Torture Project)

WSJ’s Tortured Argument: “The critics of Bush policy want to have it both ways: They want to smear Administration officials with the generalization of ‘torture’ while washing their hands of any responsibility to say what kind of interrogation, if any, they favor.”

• FACT: Many critics of the Bush Administration’s torture policies have put forward a model to follow – the Army Field Manual. The interrogation standards used by the military should be followed by officials in ALL government agencies.

The Bush Administration's Interrogation Policies Rejected

Following last week's revelation of the existence of new torture memos, there has been a lot of public conversation about American interrogation policy. Overwhelmingly, Americans are rejecting the Administration's inadequate justification of its illegal policies. Make sure you read the account of World War II interrogators, who recently came together for a reunion where many of them denounced the current Administration's "enhanced" interrogation program. As these WWII interrogators make clear, the United States was able to defeat the Nazis and maintain our values.

"We got more information out of a German general with a game of chess or Ping-Pong than they do today, with their torture," said Henry Kolm, 90, an MIT physicist who had been assigned to play chess in Germany with Hitler's deputy, Rudolf Hess.

Blunt criticism of modern enemy interrogations was a common refrain at the ceremonies held beside the Potomac River near Alexandria. Across the river, President Bush defended his administration's methods of detaining and questioning terrorism suspects during an Oval Office appearance.

Several of the veterans, all men in their 80s and 90s, denounced the controversial techniques. And when the time came for them to accept honors from the Army's Freedom Team Salute, one veteran refused, citing his opposition to the war in Iraq and procedures that have been used at Guantanamo Bay in Cuba.

"I feel like the military is using us to say, 'We did spooky stuff then, so it's okay to do it now,' " said Arno Mayer, 81, a professor of European history at Princeton University.

. . .

The interrogators had standards that remain a source of pride and honor.

"During the many interrogations, I never laid hands on anyone," said George Frenkel, 87, of Kensington. "We extracted information in a battle of the wits. I'm proud to say I never compromised my humanity."

In the Times of London, Andrew Sullivan shows that the arguments made by the Bush Administration in support of its "enhanced" interrogation program are in fact the same arguments made by the Nazis who faced war crimes prosecution for their acts. He writes: "In 1948, in other words, America rejected the semantics of the current president and his aides. The penalty for those who were found guilty was death."

Finally, make sure to take a look at yesterday's New York Times editorial, "On Torture and American Values". Here it is in full:

Once upon a time, it was the United States that urged all nations to obey the letter and the spirit of international treaties and protect human rights and liberties. American leaders denounced secret prisons where people were held without charges, tortured and killed. And the people in much of the world, if not their governments, respected the United States for its values.

The Bush administration has dishonored that history and squandered that respect. As an article on this newspaper’s front page last week laid out in disturbing detail, President Bush and his aides have not only condoned torture and abuse at secret prisons, but they have conducted a systematic campaign to mislead Congress, the American people and the world about those policies.

After the attacks of 9/11, Mr. Bush authorized the creation of extralegal detention camps where Central Intelligence Agency operatives were told to extract information from prisoners who were captured and held in secret. Some of their methods — simulated drownings, extreme ranges of heat and cold, prolonged stress positions and isolation — had been classified as torture for decades by civilized nations. The Administration clearly knew this; the C.I.A. modeled its techniques on the dungeons of Egypt, Saudi Arabia and the Soviet Union.

The White House could never acknowledge that. So its lawyers concocted documents that redefined “torture” to neatly exclude the things American jailers were doing and hid the papers from Congress and the American people.

Under Attorney General Alberto Gonzales, Mr. Bush’s loyal enabler, the Justice Department even declared that those acts did not violate the lower standard of “cruel, inhuman or degrading treatment.” That allowed the White House to claim that it did not condone torture, and to stampede Congress into passing laws that shielded the interrogators who abused prisoners, and the men who ordered them to do it, from any kind of legal accountability.

Mr. Bush and his aides were still clinging to their rationalizations at the end of last week. The president declared that Americans do not torture prisoners and that Congress had been fully briefed on his detention policies.

Neither statement was true — at least in what the White House once scorned as the “reality-based community” — and Senator John Rockefeller, chairman of the Intelligence Committee, was right to be furious. He demanded all of the “opinions of the Justice Department analyzing the legality” of detention and interrogation policies.

Lawmakers, who for too long have been bullied and intimidated by the White House, should rewrite the Detainee Treatment Act and the Military Commissions Act to conform with actual American laws and values.

For the rest of the nation, there is an immediate question: Is this really who we are? Is this the country whose president declared, “Mr. Gorbachev, tear down this wall,” and then managed the collapse of Communism with minimum bloodshed and maximum dignity in the twilight of the 20th century? Or is this a nation that tortures human beings and then concocts legal sophistries to confuse the world and avoid accountability before American voters?

Truly banning the use of torture would not jeopardize American lives; experts in these matters generally agree that torture produces
false confessions. Restoring the rule of law to Guantánamo Bay would not set terrorists free; the truly guilty could be tried for their crimes in a way that does not mock American values.

Clinging to the administration’s policies will only cause further harm to America’s global image and to our legal system. It also will add immeasurably to the risk facing any man or woman captured while wearing America’s uniform or serving in its intelligence forces.

This is an easy choice.

Fact Check: President Bush on Torture

Today, President Bush continued to defend flawed legal opinions that leave the door open to torture. Instead of leveling with the American people about what his Administration is doing, he tried to convince the American people that the laws against torture are unclear. Here are the facts.

President Bush: "This government does not torture people. We stick to U.S. law and our international obligations." (www.whitehouse.gov, 10/5/07)

• FACT: U.S. officials who authorize or use “enhanced” interrogation techniques risk violating U.S. law and could face criminal prosecution. (Leave No Marks: ‘Enhanced’ Interrogation Techniques and the Risk of Criminality, Human Rights First, Physicians for Human Rights, 8/2/07)
  
  FACT: The International Committee of the Red Cross has reportedly issued a report calling the C.I.A. techniques tantamount to torture. “Congressional and other Washington sources familiar with the report said that it harshly criticized the C.I.A.’s practices. One of the sources said that the Red Cross described the agency’s detention and interrogation methods as tantamount to torture, and declared that American officials responsible for the abusive treatment could have committed serious crimes. The source said the report warned that these officials may have committed “grave breaches” of the Geneva Conventions, and may have violated the U.S. Torture Act, which Congress passed in 1994. The conclusions of the Red Cross, which is known for its credibility and caution, could have potentially devastating legal ramifications.” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)
  
  FACT: Every time Bush asserts that the U.S does not torture, he is not just undermining his own credibility, he's diminishing the Red Cross too. "It's a downward spiral," says Elisa Massimino, Washington Director of Human Rights First. "If I'm the ICRC and I'm visiting [abused] prisoners in, say, Egypt, the Egyptians will say 'What are you going to do? The U.S. says this isn't torture'." (Time, 10/5/07)
  

President Bush: “The techniques that we use have been fully disclosed to appropriate members'' of Congress. (www.whitehouse.gov, 10/5/07)

• FACT: The White House has not shared sufficient information with the American public . . . or with Congress. Here’s Congressman Alcee Hasting’s take on the briefing process: “[T]he public and all but a few members of Congress who have been sworn to silence have had to take on faith President Bush’s assurances that the C.I.A.’s internment program has been humane and legal, and has yielded crucial intelligence. Representative Alcee Hastings, a Democratic member of the House Select Committee on Intelligence, said, ‘We talk to the authorities about these detainees, but, of course, they’re not going to come out and tell us that they beat the living daylights out of someone.’ He recalled learning in 2003 that Mohammed had been captured. ‘It was good news,’ he said. ‘So I tried to find out: Where is this guy? And how is he being treated?’ For more than three years, Hastings said, ‘I could never pinpoint anything.’ Finally, he received some classified briefings on the Mohammed interrogation. Hastings said that he ‘can’t go into details’ about what he found out, but, speaking of Mohammed’s treatment, he said that even if it wasn’t torture, as the Administration claims, ‘it ain’t right, either. Something went wrong.’” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)
  
  FACT: Members of Congress are demanding more information from the Administration. (CQ, 10/4/07)

President Bush: "There are highly trained professionals questioning these extremists and terrorists." (www.whitehouse.gov, 10/5/07)

• FACT: The C.I.A. does not have institutional experience in interrogations. “[T]he C.I.A. had virtually no trained interrogators. A former C.I.A. officer involved in fighting terrorism said that, at first, the agency was crippled by its lack of expertise. “It began right away, in Afghanistan, on the fly,” he recalled. “They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world.” The former officer said that the pressure from the White House, in particular from Vice-President Dick Cheney, was intense: “They were pushing us: ‘Get information! Do not let us get hit again!’ ” In the scramble, he said, he searched the C.I.A.’s archives, to see what interrogation techniques had worked in the past. He was particularly impressed with the Phoenix Program, from the Vietnam War. Critics, including military historians, have described it as a program of state-sanctioned torture and murder. A Pentagon-contract study found that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by the Phoenix Program were of negligible importance. But, after September 11th, some C.I.A. officials viewed the program as a useful model. A. B. Krongard, who was the executive director of the C.I.A. from 2001 to 2004, said that the agency turned to “everyone we could, including our friends in Arab cultures,” for interrogation advice, among them those in Egypt, Jordan, and Saudi Arabia, all of which the State Department regularly criticizes for human-rights abuses.” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)
  
  FACT: The C.I.A. does not have institutional experience in handling detainees. “The C.I.A. knew even less about running prisons than it did about hostile interrogations. Tyler Drumheller, a former chief of European operations at the C.I.A., and the author of a recent book, ‘On the Brink: How the White House Compromised U.S. Intelligence,’ said, ‘The agency had no experience in detention. Never. But they insisted on arresting and detaining people in this program. It was a mistake, in my opinion. You can’t mix intelligence and police work. But the White House was really pushing. They wanted someone to do it. So the C.I.A. said, ‘We’ll try.’ George Tenet came out of politics, not intelligence. His whole modus operandi was to please the principal. We got stuck with all sorts of things. This is really the legacy of a director who never said no to anybody.’” (“The Black Sites, A rare look inside the C.I.A.’s secret interrogation program,” Jane Mayer, The New Yorker, 8/13/07)
  
  
  
  

The New Torture Memos

As the Bush Administration continues to take heat over the new torture memos, Retuters reports that the CIA is still operating secret prisons overseas.

"The ongoing existence of the CIA program is extremely troubling," especially in light of the reported Justice Department opinion, said Elisa Massimino, Washington director of the advocacy group Human Rights First.

How will these developments affect the confirmation hearing for President Bush's Attorney General pick, Judge Mukasey, now scheduled for October 17th? Expect Senators on the Judiciary Committee to be asking a lot of questions about the Administration's interrogation policy.

Talkingpointsmemo.com has video up of yesterday's unconvincing performance by White House spokesperson Dana Perino. Basic message from the White House to Americans on torture: Just trust us. Unfortunately, yesterday's revelation of the existence of two more secret opinions justifying torture makes taking White House assurances impossible to do.

(For a more entertaining video clip, check out Slate's take on what happens when Justice Scalia joins the cast of "24.")

Finally, Senator Dodd -- joining Senator Obama -- has issued a statement condemning these latest torture memos. What are the other candidates saying? Post a comment if you find any of them on the record on this crucially important topic. Or, if they're in your area in the coming days, ask them yourself.

Confused About What the Bush Administration Has Authorized?

The revelation in today's New York Times of the existence of more torture opinions makes it clear that we still don't know all there is to know about what practices the Bush Administration has authorized for use in interrogations. The White House response to today's revelations has been -- once again -- to not give straight answers. However, despite the obfuscation coming from the Administration, there's a lot we do know about how its members have worked to undermine the rule of law. Here's a timeline to help you keep track of the developments.

UPDATE: The House Judiciary Committee has asked the Department of Justice for the memos. And, Senator Obama has issued a statement condemning the Administration's authorization of torture. What are the other presidential candidates saying?

DOJ: "Ashamed" by More Torture Opinions

The New York Times reveals more dark goings on at the Justice Department. After publicly taking torture off the table, the DOJ came up with legal justifications to allow the CIA to use the harshest techniques. Read the whole story. How soon will the presidential candidates weigh in on this outrage?

Secret U.S. Endorsement of Severe Interrogations

By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN

WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leavinghis job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one
most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

HRF Board Member Admiral John Hutson is quoted later in the piece explaining how these legal opinions authorizing torture undermine not only our values, but our security:

John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is ernicious, potentially blurring the rules for Americans handling prisoners.

“I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better,” Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.

“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.

President Clinton: The Generals Are Right; No Exception on Torture Ban

Public rejection of torture continues to grow. Yesterday, in an interview on NBC's Meet the Press, former President Bill Clinton expressed his opposition to policies authorizing torture. He explained that he agreed with retired military leaders who have been outspoken in their opposition to torture and said, "I think America’s policy should be to oppose torture, to honor the Geneva Conventions for several reasons. One is, it’s almost always counterproductive. If you beat somebody up, they’ll tell you what they want to hear. Two is, it, it really hurts us in the rest of the world and helps to recruit other terrorists. And thirdly, it makes our own people vulnerable to torture."

Here's the full transcript:

MR. RUSSERT: I want to talk some politics with you. The other night, the
Democratic debate in New Hampshire, I read a statement...

MR. CLINTON: Yeah.

MR. RUSSERT: ...of our conversation from last year.

MR. CLINTON: I remember that very well.

(Videotape, September 24, 2006)

MR. CLINTON: Every one of us can imagine the following scenario: We get lucky, we get the number three guy in al-Qaeda, and we know there’s a big bomb going off in America in three days, and we know this guy knows where it is, know we have the right and the responsibility to beat it out of him.

They could set up a law where the president could make a finding or could guarantee a pardon or could guarantee the submission of that sort of thing post-facto to the intelligence court just like we do now with the wiretaps.

(End
videotape)

MR. RUSSERT: Now, I didn’t tell Senator Clinton, who had made that comment to me. This was her answer. Let’s watch.

(Videotape)

SEN. HILLARY CLINTON (D-NY): As a matter of policy, it cannot be American policy period. Now, there are a lot of other things that we need to be doing that I wish we were: better intelligence, making our, you know, our country better respected around the world working to have more allies. But these hypotheticals are very dangerous, because they open a great big hole in what should be an attitude that our country and our president takes toward the appropriate treatment of everyone. And I think it’s dangerous to go down this path.

(End videotape)

MR. RUSSERT: Doesn’t seem as if she’s for the exception that you were outlining.

MR. CLINTON: She was great, though. I thought—and I thought the next part of it, where she said...

MR. RUSSERT: We’re going to get to that!

MR. CLINTON: Yeah. You know, I, I went back and read the whole transcript, and, as general point, I think she’s right. That is I think America’s policy should be to oppose torture, to honor the Geneva Conventions for several reasons. One is, it’s almost always counterproductive. If you beat somebody up, they’ll tell you what
they want to hear. Two is, it, it really hurts us in the rest of the world and helps to recruit other terrorists. And thirdly, it makes our own people vulnerable to torture.

You know, there’s a one in a million chance that you might be alone somewhere, and you’re Jack Bauer on "24." That’s the Jack Bauer example, right? It happens every season with Jack Bauer, but to—in the real world it doesn’t happen very much. If you have a policy which legitimizes this, it’s a slippery slope and you get in the kind of trouble we’ve been in here with Abu Ghraib, with Guantanamo, with lots of other examples.

And I’m not even sure what I said is right now. I think what happens is the honest truth is that Tim Russert, Bill Clinton, people filming this show, if we were the Jack Bauer person and it was six hours to the bomb or whatever, you don’t know what you would do, and you have to—but I think what our policy ought to be is to be uncompromisingly opposed to terror—I mean to torture, and that if you’re the Jack Bauer person, you’ll do whatever you do and you should be prepared to take the consequences. And I think the consequences will be imposed based on what turns out to be the truth. I think there are a lot of areas in life where you don’t. But I, I loved how she handled this whole thing. I guess you want to show the rest now.

MR. RUSSERT: But, but not heavy formal exception.

MR. CLINTON: Yeah, I don’t think you should now. The more I think about it, and the more I have seen that, if you have any kind of formal exception, people just drive a truck through it, and they’ll say "Well, I thought it was covered by the exception." I think, I think it’s better not to have one. And if you happen to be the actor in that moment which, as far as I know, has not occurred in my experience or President Bush’s experience since we’ve been really dealing with this terror, but I—you actually had the Jack Bauer moment, we call it, I think you should be prepared to live with the consequences. And yet, ironically, if you look at the show, every time they get the president to approve something, the president gets in trouble, the country gets in trouble. And when Bauer goes out there on his own and is prepared to live with the consequences, it always seems to work better.

MR. RUSSERT: I then...

MR. CLINTON: So Hillary’s probably right about this.

MR. RUSSERT: I then asked—told Senator Clinton my source, and let’s watch.

(Videotape)

RUSSERT: The guest who laid out this scenario for me with that proposed solution was William Jefferson Clinton last year.

SEN. CLINTON: Well...

MR. RUSSERT: So he disagrees with you.

SEN. CLINTON: Well, he’s not standing here right now.

MR. RUSSERT: So there is a disagreement.

SEN. CLINTON: Well, I’ll talk to him later.

(End videotape)

MR. RUSSERT: Tell me about—you’ve seen that look before?

MR. CLINTON: I have. Several times over the last 35 years. I loved it.

MR. RUSSERT: How was that conversation? Did you talk about it?

MR. CLINTON: No, I told her I thought she was terrific. And I told her, you know, how the whole thing came up. And I, and I told her, number one, I thought that the moment was great. I thought it was the defining moment of the debate. And number two, that I had decided what I just told you, that on the policy she was right, that you didn’t—once you start constructing exceptions you—you’re opening floodgates for trucks to drive through. It’s far better if you happen to the be the agent that has to deal with that, just suck it up and decide what you think is right and be prepared to live with the consequences. I think that—I think the generals were right, I think that she’s right, and I know that Senator Biden and others said the same thing. But the main thing is, she had a chance, because of this moment, to demonstrate what I know to be the truth, which is she’s perfectly comfortable making these national security calls and others even if she has to disagree with me and other people with whom she has broad agreement and for whom she has great respect. That’s what you want a president to do. You want them to listen to everybody then decide, and you want to have confidence that they will execute their decision with conviction. And I just loved it. Plus, it was funny, you know, that you, you showed that. But I, I was really proud of her. It was good.