Ban Torture

According to the acting chief of the Justice Department’s Office of Legal Counsel, Steven G. Bradbury, CIA interrogators used tactics that were “quite distressing, or uncomfortable, even frightening, but if it doesn’t involve severe physical pain, and it doesn’t last very long, it may not constitute severe physical suffering. That would be the analysis.”

“Under the mental side,” it “requires an intent to cause prolonged mental harm. That’s a mental disorder that is extended or continuing over time.”

See the article by Dan Eggen, Washington Post, and an opinion in USA Today by Jonathan Turley, and the full video (Real Player -  1hr 16min) of the Oversight Hearing on the Justice Department’s Office of Legal Counsel, February 14, 2008.  The quotes appear at around the 36-37 min mark.

Attorney General Michael Mukasey testified before the House Judiciary Committee on February 7th. Essentially, anyone who follows a Justice Department opinion is exempt from investigation, even if the opinion authorized illegal activities. Since the opinion authorizing the use of waterboarding and other enhanced interrogation techniques is classified, so no one else can investigate either.

Below is a transcript of Mukasey’s response as to whether he would investigate. Thanks to EmptyWheel and The Harvard Anti-Torture Coalition:

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

Michael 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 the CIA program at the time that it was done, was the subject of a Department of Justice opinion, through the OLC (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 justifly 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 opinion changes or indeed the political winds change. And that’s not something that I think would be appropriate and that’s not something that I will do.

John Conyers: Are you prepared to let us get a copy of the OLC opinion?

Michael Mukasey: The OLC opinion discusses particular techniques that were part of what remains a classified program. We have, I believe provided an unclassified discussion of general legal principles — did it back in 2004 — and we have provided some classified briefings with regard to the legal reasoning underlying the opinions, and are prepared to continue to do so, but the opinions themselves can’t simply be turned over because they discuss not simply legal reasoning but the program itself which remains classified.

John Conyers: Well every member of this committee is cleared for top secret information.

Michael Mukasey: The opinions themselves dealt with a program that…to the extent the opinions themselves deal with the current…opinions relating to a past program cannot simply be disclosed in that fashion. They can be the subject of briefings and have been. We can’t simply turn them over.

“The Pentagon official overseeing the planned military trials of Canadian Omar Khadr and other terror suspects at Guantanamo Bay in Cuba resigned Monday - just days after a published report alleged he’d insisted there be no acquittals.”

William J. Haynes II

Haynes’ alleged comments appeared in an interview Nation magazine conducted with Col. Morris Davis, who resigned last October as the commission’s chief prosecutor, citing political interference.

“I said to (Haynes) that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis was quoted as saying about an August 2005 meeting the two men had.

“At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? . . . We’ve got to have convictions.”

From Canada.com

This reminds me of a book:

President Bush plans to veto legislation passed by the Senate to bar the CIA from using harsh interrogation methods including waterboarding. “The United States needs the ability to interrogate effectively, within the law, captured Al-Qaeda terrorists” (AFP, February 14, 2008).