Commentary: Waterboarding, Congress and the President

“The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

“According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda’s toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess. ”

So wrote ABC News reporters Brian Ross and Richard Esposito about waterboarding, in a November 18, 2008 piece, CIA’s Harsh Interrogation Techniques Described, which relied on intelligence sources who asked to remain anonymous.

While the Bush Administration has said that waterboarding is no longer being used by the Central Intelligence Agency (CIA), it refuses to disavow the practice. And, as I noted in my analysis for LLRX of the Military Commissions Act, while Mr. Bush has said and said that the U.S. does not torture, he declared in a signing statement on the defense bill which incorporated John McCain’s Detainee Treatment Act of 2005, that his powers to protect national security trumped any limits on interrogation techniques.

On March 8, Mr. Bush announced in his weekly radio broadcast that he had vetoed Congress’s latest attempt to limit torture, H.R. 2082, the Intelligence Authorization Act for Fiscal Year 2008, which would have banned waterboarding on other methods disallowed by the Army Field Manual, saying, “The bill Congress sent me would take away one of the most valuable tools in the war on terror — the CIA program to detain and question key terrorist leaders and operatives.” On February 13, the Senate had voted 51-45 to pass the Conference Committee’s version of the measure, first introduced May 1, 2007 and passed by the House on May 11 on a vote of 225-197 . Presidential candidate John McCain (R-AZ) voted against the measure despite his prior opposition to waterboarding. Both Clinton and Obama failed to vote. On March 11, the House failed to override the President’s March 8 veto 225-188. Only 5 Republicans voted to override: Roscoe Bartlett (MD), Wayne Gilchrest (MD), Tim Johnson (IL), Ron Paul (TX) and Chris Smith (NJ). The veto came as no surprise, following his executive order on July 20, 2007, purporting to define the Geneva conventions requirements with regards to CIA interrogation techniques. The order allowed “enhanced interrogation techniques” and may exempt the CIA from Common Article 3 of the Geneva Conventions. During confirmation hearings, Attorney General nominee Michael Mukasey promised in an October 30, 2007 letter that, if confirmed, he would review waterboarding and other interrogation techniques to determine their legality. In a December 2007 letter, 30 retired military leaders wrote, “We believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans. … The current situation, in which the military operates under one set of interrogation rules that are public and the CIA operates under a separate, secret set of rules, is unwise and unpractical … What sets us apart from our enemies in this fight.. is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect.” The Democrats on the Judiciary Committee wrote on January 23, 2008, prior to his testimony on January 30, asking him to make good on that promise. At the hearing Mukasey continued to equivocate. CIA Director Gen. Michael Hayden acknowledged for the first time that the CIA had used waterboarding on Zubaydah, as well as Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri in a February 5, 2008 Senate Intelligence Committee hearing. While the Committee does not have the testimony posted on its website, as of this writing, a February 6 New York Times story, Intelligence Chief Says Al Qaeda Improves Ability to Strike in U.S., by Mark Mazzetti, summarizes Hayden’s testimony, as well as that by Intelligence Chief Mike McConnell that “a future C.I.A. request to use waterboarding on a detainee would need to be approved both by Attorney General Michael B. Mukasey and by President Bush.” At the same hearing, Robert S. Mueller III, director of the Federal Bureau of Investigation, and Lt. Gen. Michael D. Maples, director of the Defense Intelligence Agency, told the Senators that “their agencies had successfully obtained valuable intelligence from terrorism suspects without using what Mr. Mueller called the ”coercive” methods of the C.I.A.,” according to Mazzetti. Haden had already admitted on December 6, 2007 that in 2005, the CIA had destroyed at least two interrogation tapes, including footage on Zubaydah, which has resulted in an FBI investigation, announced January 2, 2008. As a result of that testimony, Senator Richard Durbin (D-IL) wrote a letter February 5 to Attorney General Michael Mukasey “In light of the Justice Department’s continued non-responsiveness to Congress on the issue of torture, including your disappointing testimony on waterboarding last week, I have reluctantly concluded that placing a hold on Judge [Mark] Filip’s nomination is my only recourse for eliciting timely and complete responses to important questions on torture.” Mukasey’s reply “‘no one who relied in good faith on the Department’s past advice should be subject to criminal investigation for actions taken in reliance on that advice” led Durbin and Sheldon Whitehouse (D-RI) to write a February 12 letter asking Justice Department Inspector General Glenn A. Fine and Counsel for Professional Responsibility H. Marshall Jarrett to investigate “the role of Justice Department officials in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency.” They explained, “the Attorney General’s justification for refusing to open an investigation…does not address Senator Durbin’s request that ‘a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law’ (our emphasis).” A February 22 press release from Senator Durbin (D-IL) shared that Jarrett had written the senators that Department’s Office of Professional Responsibility (OPR) was investigating and would likely release an unclassified version of its report to the public. Jarrett is a career prosecutor, appointed to his post by Janet Reno in 1998. An international repercussion of the February 5 testimony surfaced March 5, in Michael Isikoff and Mark Hosenball’s Newsweek article, Tainted Evidence: Canada tosses CIA terror testimony obtained through waterboarding. On February 22, the Canadian Security Intelligence Service (CSIS), had withdrawn “statements by alleged Al Qaeda leader Abu Zubaydah from public papers outlining the case against two alleged terror ‘sleeper’ operatives in Ottawa and Montreal.” Spokesman Bernard Beckhoff would not comment to the reporters on an active court case, but added, “The CSIS director has stated publicly that torture is morally repugnant and not particularly reliable. CSIS does not knowingly use information which has been obtained through torture.” Mr. Bush has decided that the CIA should not be limited in its interrogation techniques. While Congress voted in large part along partisan lines, this is not a left-right issue. For proof, see Ann Shibler’s piece March 12 reaction to the failure of the veto override for the John Birch Society, “ Bush Wants Torture .”

By failing to overturn the veto, it seems that 188 House members agree with President Bush who continues to support the idea that the government should be free to use torture. “I cannot sign into law a bill that would prevent me, and future presidents, from authorizing the CIA to conduct a separate, lawful intelligence program, and from taking all lawful actions necessary to protect Americans from attack,” he said.

In any case, there is nothing “lawful” or intelligent or “necessary” about waterboarding or any other torture techniques. And torture simply cannot “protect America from attacks.” The techniques are inhumane and immoral, and totally ineffective, but must somehow satisfy some primal instinct of lower human nature, or they wouldn’t be so popular with so many.

The fact is, America should be above the various and sundry barbarities, torture included, that seem to delight certain instincts in some. It is important, therefore, to know who amongst our legislators supports such uncivilized behavior so that, come next election, citizens who favor civilized behavior can vote accordingly.

You can check how your representative voted by clicking here. Notice the almost perfect partisan lines that were kept; know then, that is probably not about torture but partisan politics. And keep in mind that “Yeas” are good, meaning they voted to override Bush’s veto, and the “Nay’s” need to get a letter from their constituents, asking why they condone and vote for immoral and brutal treatment of other human beings when the folks back home understand torture when they see it, and want it stopped.

As the Washington Times’ Bruce Fein noted during last October’s confirmation hearings for Mukasey, “Waterboarding was an odious feature of the Spanish Inquisition. It has been uniformly prosecuted as torture by the United States military for more than a century. It has been condemned by the State Department when utilized by despots. ” And there are leaders in both parties who oppose torture, as revealed by the collection of 37 essays published in the January – March 2008 issue of Washington Monthly, “No Torture. No Excuses.” Republican Bob Barr, the former Congressman from Georgia and a member of the American Conservative Union points out that because “enhanced interrogation” is “essentially a made-up term” “activities falling within its ambit are not—cannot be—illegal.” Barr has an apt description of the current situation:

As a teenager, I loved to read comic books. Superman comics were my favorite. Among the many adversaries the Man of Steel faced (and always vanquished) was Bizarro World. In Bizarro World, everything was the opposite of that which prevailed in our world. Up was down, clean was dirty, black was white, good was bad … you get the picture.

Events of the past few years remind me more and more of Bizarro World, except now it’s not a comic-book world, it’s the real world. The effect of witnessing a federal government operating according to Bizarro World standards instead of those enshrined in our Constitution and legal system is truly frightening.

“In no instance is this scenario clearer than when the current administration has addressed the matter of whether its agents have, since September 11, 2001, tortured prisoners.

Since, presumably, there has to be an appropriation for the CIA, it remains to be seen how the Democratic leaders in Congress and their few allies in the Republican Party will, in the end, deal with Mr. Bush’s veto. In a sense, the situation is analogous to the expiration of the Protect America Act, after Mr. Bush refused to consider any alternative to telecom immunity in updating the FISA Act, which I last examined for LLRX in October. In that case, in a March 14 House vote, Mr. Bush’s opponents have, at least for the present, refused to accept his accusations of being soft on terror, neither have they accepted the blame for his unwillingness to compromise.

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