Director of the Defense Intelligence Agency Says Waterboarding is Illegal

In testimony today, the Director of the Defense Intelligence Agency admitted what many of his Bush Administration colleagues will not: waterboarding is illegal. Check it out.

Sen. Carl Levin (D-MI) asked, "General, do you believe that waterboarding is consistent with Common Article 3 of the Geneva Conventions?"

After pausing a moment to think, Maples replied, "No, sir, I don’t."

"Do you think it’s humane?" Levin asked.

"No, sir, I think it would go beyond that bound."

Finally Some Accountability? DOJ to Investigate Waterboarding

Today, the Department of Justice's Office of Professional Responsibility wrote to Senator Durbin and Senator Whitehouse announcing an investigation into the authorization of the use of waterboarding. This is a good first step toward demanding accountability from those responsible for betraying our nation's values. Unfortunately, the problem of torture and official cruelty extends beyond the one technique of waterboarding. While the DoJ is at its investigation, it should also look at the other illegal activities reportedly in use such as the employment of stress positions, sleep deprivation, and hypothermia. From The Politico:

Justice Department Announces Waterboarding Investigation
By Daniel W. Reilly

Feb 22, 2008

(The Politico) The Justice Department announced it has launched an investigation into who authorized the use of waterboarding at the department, following a request from Democratic Sens. Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.

After the two sent the DOJ a letter asking who authorized the use of the controversial interrogation technique, H. Marshall Jarrett, the head of DOJ’s Office of Professional Responsibility, wrote the senators that this issue is; “included in a pending OPR investigation into the circumstances surrounding the drafting” of a 2002 Office of Legal Counsel memo on interrogation standards.

Earlier this month, CIA Director Michael Hayden publicly admitted for the first time that the agency had used waterboarding on 3 suspects, including Khalid Sheikh Mohammed, known as one of the architects of the 9/11 terrorist attacks.“The United States has always repudiated waterboarding as a form of torture and prosecuted it as a war crime,” said Durbin in a statement released on Friday. “Justice Department officials who ignored this history -- even those at the highest levels -- must be held accountable for their actions.”

The waterboarding issue nearly derailed the nomination of Michael Mukasey to be
attorney general, with Democrats trying to get Mukasey to state unequivocally that the practice was torture. Although Mukasey refused to do so and was later confirmed--Democrats have not let the issue drop.“Congress and the American people deserve to know how these decisions were made and who was involved,” Durbin said of the investigation.There was no indication of when the DOJ’s investigation would be completed.

Here's a copy of the DoJ's letter to Senators Dubin and Whitehouse.

"Mistakes were made": CIA Confirms Rendition Flights to Brits

Or, as the CIA Director Michael Hayden puts it: the Administration's previous denial of having used British soil and airspace for rendion flights "turned out to be wrong." From the AP:

CIA Confirms Rendition Flights to Brits

By PAMELA HESS

WASHINGTON (AP) — CIA Director Michael Hayden acknowledged Thursday that two rendition flights carrying terror suspects refueled on British territory, despite repeated U.S. assurances that none of the secret flights since the Sept. 11 attacks had used British airspace or soil.

Hayden told agency employees that information previously provided to the British "turned out to be wrong."

The spy agency reviewed rendition records late last year and discovered that in 2002 the CIA had in fact refueled two separate planes, each carrying a terror suspect, on Diego Garcia, a British island territory in the Indian Ocean.

"The refueling, conducted more than five years ago, lasted just a short time. But it happened. That we found this mistake ourselves, and that we brought it to the attention of the British government, in no way changes or excuses the reality that we were in the wrong. An important part of intelligence work, inherently urgent, complex, and uncertain, is to take responsibility for errors and to learn from them," Hayden stated in the message obtained by The Associated Press.

Hayden said neither man was tortured and denied there has ever been a holding facility for CIA prisoners on Diego Garcia. Both men remained on their respective planes during the brief stops, according to a U.S. intelligence official who spoke on condition of anonymity because of the sensitivity of the matter.

Hayden delivered the news to the British government last weekend on a previously scheduled trip to London.

British Foreign Secretary David Miliband announced the rendition flights earlier Thursday. British Prime Minister Gordon Brown said he "shared the disappointment that everybody has" about the stops, and that it was important to ensure they would not happen again.

The State Department's top lawyer, John Bellinger, flew to London overnight to deal with potential diplomatic and political fallout, according to a senior State Department
official.

One of the two prisoners is now jailed at Guantanamo Bay Naval Base and the other was released to his home country, where he has since been freed by that government, the U.S. intelligence official said.

The CIA didn't interrogate or imprison either man, according to the official. In this case, the CIA only moved the two men from one country to another.

The CIA has held and interrogated fewer than 100 prisoners in its detention program, using "enhanced" or harsh interrogation techniques on about a third of them, Hayden has told Congress.

The rendition program secretly transfers alleged terrorists from one country to another without formal extradition proceedings. It can involve moving prisoners to the custody of governments where harsh interrogation techniques, including torture, are known to be used. The U.S. government insists it does not move prisoners to third countries without assurances that torture will not be used.

The British government had previously insisted it had no evidence to support allegations that Britain had been involved in rendition.

Secretary of State Condoleezza Rice told reporters in 2005 that the United States respects the sovereignty of foreign countries when conducting intelligence operations within their borders, suggesting that the CIA conducts rendition flights with the permission of the governments involved.

In a Dec. 6, 2005, interview with Sky News from Berlin, Rice publicly sidestepped a question about whether British airports or airspace were being used in rendition, and whether the British government was aware of it.

"We have obligations under our international conventions and we are respecting the sovereignty of our allies," she said. "We are not using the airspace or the airports of any of our partners for activities that would lead renditions to torture. We don't send people to be tortured."

The United States did not begin seeking permission from governments before using their airspace and facilities for rendition until after the 2002 flights in question, according to a State Department official.

State Department spokesman Sean McCormack said Thursday that Rice spoke to Miliband about "the administrative error" on Wednesday.

"Unfortunately, even with the best intentions, unfortunately, even with the most rigorous searches and, unfortunately, with good technology, sometimes administrative errors occur and this was the case," McCormack said. "We regret that there was an error in initially providing inaccurate information to a good friend and ally."

McCormack said the review last year was "self-generated."

A U.S. intelligence official said the review was prompted by fresh allegations in the press last fall that Diego Garcia was being used as a secret detention site.

"We, in taking a look in particular at the issue of Diego Garcia, asked ourselves a few questions and as a result generated this search," he said.

Gordon Johndroe, National Security Council spokesman for President Bush, said the incident was "unfortunate" but will not damage U.S.-British cooperation.

"Mistakes were made in the reporting of the information," he said. "But we will continue to have a good counterterrorism cooperation between the United States and United Kingdom."

Associated Press writer Matthew Lee contributed to this report from Washington.

To Oppose Torture, Senator McCain Should Support Applying the Army Field Manual Standards to the CIA

Senator John McCain has a long and distinguished record of principled opposition to torture and official cruelty. There is much in his statement of February 13 that is indisputable. For example, we agree with Senator McCain that, “The laws and values that have built our nation are a source of strength, not weakness, and we will win the war on terror not in spite of devotion to our cherished values, but because we have held fast to them.” Unfortunately, his conclusion to oppose applying the Army Field Manual to the CIA and other intelligence agencies is the wrong one. Here’s why:

Senator McCain: “When, in 2005, the Congress voted to apply the Field Manual to the Department of Defense, it deliberately excluded the CIA. The Field Manual, a public document written for military use, is not always directly translatable to use by intelligence officers.”

Response: The Defense Intelligence Agency – which runs intelligence operations around the world – has no need to resort to any techniques beyond those described in the Army Field Manual. Neither Senator McCain nor anyone else has explained why the CIA has different requirements.

• General David Petraeus stated in a May 10, 2007 open letter to the troops: “Certainly, extreme physical action can make someone “talk;” however, what the individual says may be of questionable value. In fact, our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.”
  

• The approaches in the Field Manual were reviewed and endorsed by Director of National Intelligence — who coordinated with the CIA — as well as by the Director of the Defense Intelligence Agency, the joint staff, combatant commanders and their senior legal advisors worldwide, and each service’s secretary and Judge Advocate General.

Senator McCain: “I’d emphasize that the DTA permits the CIA to use different techniques than the military employs, but that it is not intended to permit the CIA to use unduly coercive techniques – indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment.”

Response One: But the CIA reportedly is using techniques that are cruel, inhuman, or degrading.

• ABC News reports there are four main techniques that have been authorized for use in the CIA program: physical assaults (“shaking,” “slapping”), hypothermia (dousing naked prisoner with cold water in room kept at 50°), stress position combined with sleep deprivation (feet shackled to floor bolt, prisoner forced to stand motionless for more than 40 hours) and waterboarding (creating what ABC News described as “a terrifying fear of drowning”). (ABC News, 11/8/05). Bush Administration officials have said that waterboarding is no longer in use, but the White House has reserved the right to use the technique in the future.

• In 2005, the CIA destroyed the tapes showing the interrogations of two high-value detainees – Abu Zubaydah and Abd al-Rahim al-Nashiri – who were reportedly subject to waterboarding, among other abuse. The tapes’ destruction is now the subject of an ongoing obstruction of justice inquiry.
  

Response Two: What are the additional techniques that do not violate the law that the CIA would like to use?

• If there are other techniques not included in the field manual that are lawful, humane, and effective to use against prisoners, wouldn’t Senator McCain want the military to have access to such techniques? After all, it is the military that most often finds itself in time sensitive situations where eliciting good intelligence from interrogations is crucial to saving lives.
  

Senator McCain: “Similarly, as I stated after passage of the Military Commissions Act in 2006, nothing contained in that bill would require the closure of the CIA’s detainee program; the only requirement was that any such program be in accordance with law and our treaty obligations, including Geneva Common Article 3.”

Response: In fact, the techniques reportedly being used by the CIA are not “in accordance with law and our treaty obligations, including Geneva Common Article 3.”

• On July 20, the President issued an Executive Order on the CIA interrogation program that fails to prohibit techniques including mock-drowning, sexual humiliation, severe isolation and sensory bombardment. These techniques are prohibited by U.S. law and could subject U.S. officials who authorize or use them to criminal prosecution. (Leave No Marks: "Enhanced" Interrogation Techniques and the Risk of Criminality, Human Rights First)

• Distinguished medical experts have said: “There must be no mistake about the brutality of the ‘enhanced interrogation methods’…. Prolonged sleep deprivation, induced hypothermia, stress positions, shaking, sensory deprivation and overload, and water-boarding … can have a devastating impact….. They cannot be characterized as anything but torture and cruel, inhuman, and degrading….”[1]

Senator McCain: “The conference report would go beyond any of the recent laws that I just mentioned – laws that were extensively debated and considered – by bringing the CIA under the Army Field Manual, extinguishing thereby the ability of that agency to employ any interrogation technique beyond those publicly listed and formulated for military use. I cannot support such a step because I have not been convinced that the Congress erred by deliberately excluding the CIA. I believe that our energies are better directed at ensuring that all techniques, whether used by the military or the CIA, are in full compliance with our international obligations and in accordance with our deepest values. What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.”

Response: The Bush Administration has never provided a good faith interpretation of the statutes that guide what is permissible in the CIA program. In fact, the Bush Department of Justice has repeatedly been willing to sanction torture.

• In August 2002, a Department of Justice memo defined torture so narrowly so that only interrogation techniques which caused death or pain equal to that associated with organ failure constitute torture. Although this opinion was withdrawn in 2004 and replaced in 2005, it has never been repudiated.

• While the Department of Justice publicly declared torture “abhorrent” in a 2004 memo, it reportedly issued a secret memo several months later explicitly authorizing the use of abusive interrogation techniques – including exposure to frigid temperatures, waterboarding, and head-slapping. (Scott Shane, David Johnston and James Risen, Secret U.S. Endorsement of Severe Interrogations, New York Times, 10/4/07)

• At the same time the US Congress was acting to pass the McCain amendment (in the fall of 2005) to prohibit the use of cruel, inhuman, and degrading treatment, the Department of Justice reportedly issued another secret memo concluding that none of the CIA’s “enhanced interrogation techniques” violated this prohibition.

• In 2006, the Supreme Court stepped in, overruling the administration and concluding that all detainees are entitled to the minimal humane treatment protections found in the Geneva Conventions’ Common Article. In response, the administration – with Attorney General Mukasey’s blessing – has defined the humane treatment requirements so narrowly that even strapping someone to a board, suffocating him with water, and inducing a fear of imminent death, is humane in certain circumstances.
  

Senator McCain: “This necessarily brings us to the question of waterboarding. Administration officials have stated in recent days that this technique is no longer in use, but they have declined to say that it is illegal under current law. I believe that it is clearly illegal and that we should publicly recognize this fact.”

Response: Despite Senator McCain’s wish, the fact remains that the nation’s chief law enforcer, Attorney General Michael Mukasey, refused to declare waterboarding illegal. While he stated that it is not currently authorized for use by the CIA, he left open the possibility of its use in the future. He even refused to say that it would be illegal if used by an enemy nation in interrogations of an American.



[1] Letter to Sen. McCain, September 21, 2006, signed by Allen Keller, MD (Director, Bellevue/NYU Program for Survivors of Torture), Gerald Koocher, PhD (Pres, Am Psychological Assoc), Burton Lee, MD (Physician to Pres George HW Bush), Bradley Olson, PhD (Chair, Divisions for Social Justice, Am Psychological Assoc), Pedro Ruiz, MD (Pres, Am Psychiatric Assoc), Steven Sharfstein, MD (former President, American Psychiatric Assoc), Brig Gen Stephen Xenakis, MD (USA-Ret.), Philip Zimbardo, PhD (prof emeritus, Stanford, past Pres, Am Psychological Assoc).

Washington Post: President Bush Stands in the Way of a Ban on Torture

Today, the editors of the Washington Post take on President Bush and his threat to veto legislation that would put an end to the use of torture by the CIA. They also explain why Senator John McCain's reasoning behind his opposition to the bill just doesn't make sense.

Moral Barrier

The president stands in the way of a ban on torture.

LAWMAKERS THIS week took an important step toward restoring the moral authority of the United States by approving legislation that would ban the use of torture by U.S. personnel, including CIA agents, in questioning detainees. One would think the leader of a country that cherishes human rights would support this worthy measure, but President Bush, to the great detriment of the United States and his legacy, is likely to veto it.

In a 51 to 45 vote, the Senate adopted a measure to require all U.S. interrogators to abide by the rules in the Army Field Manual, which specifically prohibit waterboarding, or simulated drowning, as well as severe sleep and sensory deprivation. The House passed the measure in December. Military leaders have repeatedly testified that the field manual's ban on torture has not diminished their ability to collect reliable information. High-level detainees, including former Iraqi strongman Saddam Hussein, have been interrogated to great effect under the auspices of the manual. The FBI also eschews extreme interrogation tactics, and agency officials have said that they have not been hampered in gathering information.

Yet Mr. Bush continues to resist calls for the suspension of policies that erode the values of this country, put U.S. personnel at greater risk of being abused and are largely counterproductive because detainees desperate to avert pain provide unreliable information. Earlier efforts to outlaw torture through the Detainee Treatment Act and the Military Commissions Act have fallen victim to the Bush administration's legal duplicities. The administration, which recently admitted the use of waterboarding on three terrorism suspects before enactment of those laws, still refuses to declare definitively that waterboarding is illegal even under the new legal scheme. Yesterday, Stephen G. Bradbury, acting head of the Justice Department's Office of Legal Counsel, suggested that the technique may not be legal under the new laws but stopped short of declaring it so. He would say only that the department has had no occasion to determine its legality.

In a campaign to justify a veto, Mr. Bush might try to seize upon the vote by Republican presidential front-runner Sen. John McCain against the measure. Mr. McCain, who was tortured as a prisoner of war in Vietnam, has been a leading light in decrying such coercive interrogations. (Democratic presidential candidates Hillary Rodham Clinton and Barack Obama have said they favor the measure.) Mr. McCain argued that "what we need is not to tie the CIA to the Army Field Manual, but rather to have a good-faith interpretation of the statutes that guide what is permissible in the CIA program."

Perhaps a President McCain could be trusted to provide such a "good-faith interpretation" of existing law. President Bush cannot. And there is too much at stake, now and in the future, to leave the integrity of the country's laws and the preservation of its values to chance.

Senate Beats Back White House Pro-Torture Public Relations Push

This afternoon, the Senate joined the House to pass legislation applying the Army Field Manual standards of interrogation to the CIA. This vote marks a major step toward putting an end to policies that have allowed for torture and official cruelty by U.S. officials. Although this vote shows that the recent public relations push from the Administration aimed at gaining support for its illegal use of waterboarding is failing, President Bush is threatening to veto this legislation.

Over 40 Retired Military Leaders Urge the Senate to Close the CIA Loophole on Torture

Tomorrow, the Senate will vote on whether it will join the House in putting an end to the loophole that allows the CIA to engage in torture and official cruelty. Over 40 retired military leaders have written to the Chairman and Vice Chairman of the Senate Intelligence Committee in favor of legislation that would apply the Army Field Manual Standards of interrogation to the CIA. Read why they support this important piece of legislation here:


February%2012%20Letter%20from%20Retired%20Military%20Leaders%20to%20the%20Intelligence%20Committee.pdf

Justice Scalia Tortures Logic Yet Again

The same Supreme Court Justice and "24" fan who recently claimed that Jack Bauer saved Los Angeles, Justice Antonin Scalia, has decided to wade into the torture debate for a second time. In an interview with the BBC, Justice Scalia once again gives a troubling defense of torture and official cruelty.

In the interview with the Law in Action programme on BBC Radio 4, [Justice Scalia] said it was "extraordinary" to assume that the ban on "cruel and unusual punishment" - the US Constitution's Eighth Amendment - also applied to "so-called" torture.

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime."

Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

Sure, it's possible that in some cases interrogation might not be considered "punishment" under the 8th Amendment, but it seems Justice Scalia has forgotten about the 5th Amendment's guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.

Justice Scalia's remarks also make one wonder: Why is the Justice so fixated on the ticking time bomb scenerio? Intelligence experts have testified to Congress that torture would be unnceccessary even in the unlikely event that this situation were to be enountered. Interrogators say that they have all of the tools they need without resorting to torture.

In his interview, Justice Scalia also asserted that the U.S. Constitution does not protect non-citizens abroad. (We'll post the audio shortly.) But, he's wrong again on this point. The constitutional power to exercise jurisdiction over a US ctizen acting abroad is not affected by the possibility that the victim is a non-American. (Were it otherwise, the U.S. could have no war crimes legislation, which it does have.) Justice Scalia is also wrong to claim that the constitution does not empower the US to reach abroad even when the perpetrator is a foreigner (e.g.,, when non-citizens harm citizens or engage in conduct detrimental to vital national interests, like counterfeiting US currency).

Attorney General Won't Investigate the CIA's Use of Waterboarding

Our nation's top law enforcement officer is not going to be investigating whether the CIA's use of waterboarding was illegal. Isn't investigating crime his job?

From today's hearing in the House Judiciary Committee:

CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

MUKASEY: That's a direct question, and I will give a direct answer.

No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.

For me to use the occasion of the disclosure that that technique was once part of the CIA program -- an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so.

That would put in question not only that opinion, but also any other opinion from the Justice Department.Essentially, it would tell people: "You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change." And that's not something that I think would
be appropriate and it's not something I will do.

Bush Administration: We do not torture. . . . much.

In an effort to convince the Senate not to pass legislation that would prevent the CIA from using "enhanced" interrogation techniques -- torture -- the Bush Administration has now changed its tune from, "We do not torture," to something more like: we do not torture or use official cruelty very much and have stopped using one of the most objectionable techniques.

Here's a report from Reuters on CIA Director Michael Hayden's testimony before the Sentate Intelligence Committee today. For the first time, Hayden named the three men subjected to waterboarding by the CIA and he testified that the CIA's detention and interrogation program has held fewer than 100 people, a smaller subset of whom have been on the receiving end of the "enhanced" techniques.

Basically, General Hayden's argument is that the Senate shouldn't do anything to rein in the CIA because its law breaking has been relatively limited.

Persuaded? Hard to imagine the Senate will be either.

Fact Check: Attorney General Mukasey and Waterboarding

The Attorney General's January 30 Testimony before the Senate Judiciary Committee: Mukasey’s Statements on Waterboarding and other Coercive Interrogation Techniques, and Human Rights First’s Responses

On Wednesday January 30, 2008, Attorney General Michael Mukasey appeared before the Senate Judiciary Committee. This was his first appearance before the committee since his confirmation hearings in October 2007. Click here to read a transcript of the hearing.
Once again, as he had during his confirmation hearing, Mr. Mukasey refused to state a clear position on the legality of waterboarding. (Click here to read Human Rights First’s press statement on his position.) He also refused to identify the other so-called “enhanced” interrogation techniques the CIA is using or his analysis of their legality. He simply and broadly assured the committee that they are all legal.

And as for the scope of the Justice Department’s investigation into the destruction of CIA interrogation videotapes, Mr. Mukasey refused to offer any reason why the investigation he has authorized should be limited in scope merely to the legality of the destruction of the tapes and not include the much more serious issue of the legality of the conduct shown on those tapes. Click here to read Human Rights First’s press statement on the investigations.

Waterboarding

What Attorney General Mukasey said:

“If this were an easy question, I would not be reluctant to offer my views on this subject. But with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit waterboarding's use. But other circumstances would present a far closer question. Reasonable people can disagree and have disagreed about these matters.”

Human Rights First’s Response:

Waterboarding is torture and a felony under the federal torture statute, 18 U.S.C. § 234018 U.S.C. § 2340, et seq. This is an absolute standard, not dependent on circumstances. In 2006 the sitting senior uniformed lawyers of the military services testified before Congress unanimously and unambiguously that waterboarding is inhumane and illegal, and violates U.S. legal obligations under Common Article 3 of the Geneva Conventions. Their conclusion was reinforced by four retired Judge Advocates General who wrote in a November 2007 letter to the Senate Judiciary Committee:

“This is a critically important issue – but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation…. The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule – the law – has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise – or even to give credence to such a suggestion – represents both an affront to the law and to the core values of our nation.”

Congressional Views on Waterboarding

What Attorney General Mukasey said:

“You say that waterboarding is obviously torture…. This is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed within this chamber. During the debate on the Military Commissions Act, when some people thought that it was unnecessary, some people thought that it [the law] obviously barred waterboarding, other people thought that it was so broadly worded that it would allow anything, and there were expressions on both sides.”

Human Rights First’s response:

The primary sponsors of the Military Commissions Act, including Senators John Warner, Lindsay Graham and John McCain, explicitly stated that coercive techniques including waterboarding, inducing hypothermia, the use of dogs and other “enhance interrogation techniques” are prohibited-. Senator Warner said that these types of conduct are “grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill.” And Senator McCain said “The President and his subordinates are … bound to comply with Geneva. That is clear to me and all who have negotiated this legislation in good faith.... We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act but with all of our obligations under Common Article 3 of the Geneva Conventions.” Click here to read more about the Senate debate about the Military Commissions Act.

Second-Order Effects: The Impact of U.S. Interrogation Practices on the Safety of the U.S. Military

What Attorney General Mukasey said:

“Our military is not subjected to any dangers at all, and shouldn’t be subjected to any dangers at all, by anything I’ve said, or indeed that they’ve said. Our military fights in uniform, follows a recognized chain of command, doesn’t target civilians and is entitled to and should receive the protections of the Geneva Conventions.”

Human Rights First’s Response

Mr. Mukasey either ignores or fails to comprehend the importance of reciprocity to the observation and enforcement of the law of war. Common Article 3 of the Geneva Conventions prescribes that “in all circumstances” detainees are to be “treated humanely.” It prohibits cruel treatment and torture, outrages upon personal dignity and humiliating and degrading treatment. This standard does not depend on whether a detainee was wearing a uniform, following a recognized chain of command or any other factor. It applies to every detainee in all circumstances. The U.S. Supreme Court affirmed this commitment in Hamdan v. Rumsfeld in 2006, holding that Common Article 3 binds the U.S. government in its treatment of all detainees captured during armed conflict. Click here to read more about this case. The U.S. military adheres to this broad standard in large part because it believes that the observation of humane treatment standards by U.S. government agencies – civilian as well as military – thereby promotes humane treatment of U.S. personnel when they are detained in combat. But when the CIA uses “enhanced interrogation techniques” that violate this standard, their actions inevitably subject members of the U.S. military to greater danger. As 49 senior retired U.S. military leaders said when Congress was considering this question, “We have people deployed right now in theaters where Common Article 3 is the only source of legal protection should they be captured. If we allow that standard to be eroded, we put their safety at greater risk.” Click here to read Human Rights First press statement and the full letter.

The Justice Department Investigation of the CIA’s Destruction of Interrogation Videotapes

What Attorney General Mukasey said:

“When it comes to past conduct, one of the many questions involving past conduct, in addition to what was done is, what authorizations were given, what authorizations were reasonably relied on?.... I don’t start an investigation out of curiosity. I start an investigation out of some indication that somebody might have had an improper authorization. I have no such indication now.”

Human Rights First’s Response:

Mr. Mukasey’s framework for analyzing the potential criminality of past conduct omits the most critical element: the law. Apart from assessing what was done and what authorizations were given and reasonably relied upon, any serious inquiry into the legality of past conduct must apply the applicable law to “what was done.” Thus while it is of course relevant to know whether there is “some indication that somebody might have had an improper authorization,” the much more central inquiry must be whether there is some indication that somebody might have broken a law. Mr. Mukasey rightly noted that there actually is a very “low bar” for beginning a criminal investigation. He went on to say that a criminal investigation should be undertaken when “that preliminary inquiry show[s] some reason – some reason – to believe that some statute may have been violated, which is a very low standard – it's well below probable cause.” But he could not be more wrong to characterize the interpretation and application of the relevant statutes as having “only tangentially” to do with assessing the need for a criminal investigation – an approach that is fundamentally contrary to the principle of the Rule of Law.

There is more than “some indication” that the destruction of the tapes may have broken the law, given the panoply of outstanding lawful orders and requests to preserve and produce records of interrogation, by various courts, Congress and the 9/11 Commission before the tapes were destroyed. Likewise there is far more than merely “some indication” that cruel and coercive conduct by the CIA recorded on the tapes may have broken the Anti-Torture Act and other U.S. laws, even based only upon government admissions about those techniques. This is not to say that the CIA’s techniques definitely broke the law – that determination must await a criminal trial. But Mr. Mukasey’s suggestion that there is no indication that these enhanced techniques may have ever violated some statute is simply not credible.

The Attorney General’s Responsibility to Enforce the Law

What Attorney General Mukasey said:

“The question of whether waterboarding should be outlawed or shouldn’t be outlawed is a question on which other people [in government] own a substantial part of the answer. Notably, the people involved in gathering intelligence, using intelligence, processing intelligence, explaining our position abroad…. I’m now the Attorney General. And for me to take my personal reaction to something and put the authority of that office on the scale when I haven’t heard all of the things I’ve told you I think I need to hear is, to me, a big mistake.”

Human Rights First’s Response:

During his confirmation hearings Attorney General Mukasey promised to review past and current interrogation practices and evaluate whether the CIA’s “enhanced interrogation techniques” comply with the law and whether, as a matter of law or policy, they should be changed. Separate and apart from the question of whether the Justice Department should investigate and prosecute past violations of the law, Mr. Mukasey continues to refuse to take a position on whether waterboarding and other “enhanced techniques” – like subjecting detainees to painful stress positions, sleep deprivation or hypothermia – are prohibited by law or should be prohibited as a matter of policy. After nearly three months in office, this position is simply indefensible. This is his job.