Connecticut federal prosecutor John Durham can clear at least one task off his full plate. His criminal investigation into the destruction of CIA interrogation videotapes won’t touch waterboarding.
Attorney General Michael Mukasey told the House Judiciary Committee last week that his lawyers concluded that the CIA’s use of waterboarding in 2002 and 2003 was legal. So the department cannot investigate whether a crime occurred.
Two months ago, Mukasey called on Durham to lead an investigation into the destruction of videotapes that showed CIA officers using tough interrogation methods while questioning two al-Qaida suspects.
Mukasey suggested at the time that Durham would follow the investigation wherever it took him.
The waterboarding question came up after the Bush administration revealed earlier in the week that the CIA had indeed used the technique on a few occasions.
CIA Director Michael Hayden confirmed Tuesday that the CIA waterboarded al-Qaida prisoners Khalid Sheik Mohammed; Zayn al-Abidin Muhammed Husseing and Abd al-Rahim al-Nashiri at a secret detention site. He defended the use of waterboarding as necessary to obtain information about potential terrorist attacks.
Vice President Dick Cheney also hit the Republican speakers’ circuit last week to defend the practice.
“It’s a tougher program for a very few tougher customers,” Cheney told the Conservative Political Action Convention and the Pennsylvania State Victory Committee. “The program is run by highly trained professionals who understand their obligations under the law.
“And the program has uncovered a wealth of information that has foiled attacks against the United States.”
House Judiciary Committee Chairman John Conyers asked Mukasey straight up about the program during an oversight hearing last week.
“Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?” asked Conyers, D-Mich.
“That’s a direct question, and I will give a direct answer. No, I am not,” Mukasey said.
Here’s his torturous reasoning.
At the time of the waterboarding, it was done “as part of a CIA program” that had been cleared as “permissible under the law as it existed then” by the Department of Justice’s Office of Legal Counsel.
To launch a criminal investigation of a technique used by someone who relied on a Justice Department opinion as legal would put in question not only that opinion “but also any other opinion from the Justice Department,” Mukasey said.
“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 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,” he said.
Rep. William Delahunt, D-Mass., a former state attorney general, seemed skeptical of that logic, noting that the “law is the law” and that relying on bad legal opinions to shield oneself from prosecution would be a new legal doctrine.
“You know, this is brand-new legal theory, at least in terms of my own legal scholarship,” he said.
Rep. Adam Schiff, D-Calif., wasn’t satisfied with Mukasey’s answer either.
“If we don’t establish a bright line, in this country, that we don’t torture, then it makes it very hard for us to argue to other countries that they shouldn’t torture our people, period,” he said.
Mukasey countered that there is a bright line: “We bar the torture.”
Simple? Well, then he adds the legal footnote: “The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounce on it one way or the other.”
“That’s a bright line that we can hold up to the rest of the world?” Schiff asked.
“We have and do defend our position before the rest of the world. We have people in the State Department who do a superb job at that. And we will continue to do that,” Mukasey explained.
Connecticut Sen. Chris Dodd issued a statement urging a brighter line than Mukasey’s.
“There is no such thing as ‘simulated’ drowning. When a person is strapped to a board and water is poured into their mouth and nose with no way to get air, that is drowning; that is torture,” he said.
Dodd said that President Bush should make clear that “all forms of torture – including waterboarding – are always wrong and always illegal.”
Speaking of torture
Sen. Joe Lieberman offered some insights into hostilities that afflict moderates from both ends of the political spectrum. Lieberman gets the brunt from liberal Democrats while his conjoined twin John McCain takes it from conservative Republicans.
“I do see some similarities. It is part of what is wrong in American politics today,” Lieberman said. “At the margins of either party there is a significant group of people who seem to really want to be more in a fight than to get things done.”
Lieberman says the majority is in the middle looking for Democrats and Republicans to find common ground for the good of the nation.
“John McCain is a conservative Republican but it is important to say that he is his own man and he will do what he thinks is right. As devoted a Republican as he is, if party interest conflicts with what he thinks is in the national interest he will always go with the national interest.”
(Yes, it seems Lieberman can’t make the connection between getting things done and getting out of Iraq – something two-thirds of Americans have consistently said they believe is in the nation’s interest.)
Drip. Drip. Drip.