[Sosfbay-discuss] Remarks on Torture May Force New Administration’s Hand

[Drew Johnson]

http://www.nytimes.com/2009/01/17/us/politics/17detain.html?_r=1

Remarks on Torture May Force New Administration’s Hand

By SCOTT SHANE
Published: January 16, 2009
WASHINGTON — Just 14 months ago, at his confirmation hearing, Attorney
General Michael B. Mukasey frustrated and angered some senators by
refusing to state that waterboarding, the near-drowning technique used on
three prisoners by the Central Intelligence Agency, is in fact torture.

Related
Times Topics: Eric H. Holder Jr.

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This week, at his confirmation hearing, Eric H. Holder Jr., the attorney
general-designate, did not hesitate to express a clear view. He noted that
waterboarding had been used to torment prisoners during the Inquisition,
by the Japanese in World War II and in Cambodia under the Khmer Rouge.

“We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder said.
“Waterboarding is torture.”

In the view of many historians and legal authorities, Mr. Holder was
merely admitting the obvious. He was agreeing with the clear position of
his boss-to-be, President-elect Barack Obama, and he was giving an answer
that almost certainly was necessary to win confirmation.

Yet his statement, amounting to an admission that the United States may
have committed war crimes, opens the door to an unpredictable train of
legal and political consequences. It could potentially require a
full-scale legal investigation, complicate prosecutions of individuals
suspected of committing terrorism and mire the new administration in just
the kind of backward look that Mr. Obama has said he would like to avoid.

Mr. Holder’s statement came just two days after the Defense Department
official in charge of military commissions at Guantánamo Bay, Cuba, said
in an interview with The Washington Post that she had refused to permit a
trial for one detainee there, Mohammed al-Qahtani, because she believed he
had been tortured.

Together the statements, from a current and an incoming legal official,
cover both the Central Intelligence Agency, which has acknowledged
waterboarding three captured operatives of Al Qaeda, and the military’s
detention program.

Legal experts across the political spectrum said the statements would make
it difficult for the incoming administration to avoid a criminal
investigation of torture, even as most also say a successful prosecution
might well be impossible.

Two obvious obstacles stand in the way of a prosecution: legal opinions
from the Justice Department that declared even the harshest interrogation
methods to be legal, and a provision in the Military Commissions Act of
2006 that grants strong legal protections to government employees who
relied on such legal advice in counterterrorism programs.

Still, Jennifer Daskal, senior counterterrorism counsel at Human Rights
Watch, said, “It would be contrary to the principles of the criminal
justice system for the attorney general to say he believes a very serious
crime has been committed and then to do nothing about it.”

Charles D. Stimson, who served as the Defense Department’s top official on
detainee affairs from 2004 to 2007 and is now a senior legal fellow at the
conservative Heritage Foundation, said the statements “certainly will
increase the pressure on Holder to mount some kind of investigation.”

In addition to domestic political pressures, the United States appears to
have a legal obligation as a party to the international Convention against
Torture to follow up on the torture statements. That treaty requires
signatory states to conduct a “prompt and impartial investigation,
wherever there is reasonable ground to believe that an act of torture has
been committed in any territory under its jurisdiction.”

The Bush administration placed its interrogation operations offshore, at
the American base in Cuba and at secret C.I.A. sites, and officials have
sometimes argued that they were not on territory under American
jurisdiction. But that assertion has been eroded by court decisions
concerning the Guantánamo detention center, and it is unlikely that the
Obama administration would use such a loophole to avoid the torture
convention’s effect.

“There’s a moral, legal and practical obligation of the United States to
follow this allegation in good faith wherever it leads,” said Juan E.
Méndez, a veteran human rights lawyer who is president of the
International Center for Transitional Justice in New York.

Where such an inquiry might lead is an unsettling question for departing
Bush administration officials, who have long worried that aggressive
policies could make them vulnerable to civil or criminal liability.

If rank-and-file interrogators are protected by the Justice Department’s
assurance that their actions were legal, what about the lawyers who gave
the assurances? What about the senior officials, including President Bush,
who approved the use of waterboarding and other such tactics?

Such questions are so legally daunting and politically complex that Mr.
Obama has played down, while not ruling out, the possibility of a criminal
investigation or a national commission to examine past policies. In an
interview with ABC last Sunday, he said “my orientation’s going to be to
move forward” rather than looking back.

In recent weeks, Mr. Bush, Vice President Cheney and other officials have
strongly defended their counterterrorism methods and credited them with
preventing attacks on the United States since 2001. Their implicit
argument — that the Obama administration should not question policies that
protected Americans — was made more explicit and personal by Michael V.
Hayden, the departing C.I.A. director, in a session with reporters on
Thursday.

“If I’m going to go to an officer and say, ‘I’ve got a truth commission,
or I want to post all your e-mails, or, well, we’ve got this guy from the
bureau who wants to talk to you,’ ” Mr. Hayden said, it would discourage
such a C.I.A. officer from taking risks on behalf of the new president’s
policies.

“We have no right to ask this guy to bet his kid’s college education on
who’s going to win the off-year election,” Mr. Hayden said, alluding to
legal fees that such a C.I.A. officer might face.

At his confirmation hearing, Mr. Holder was asked by Senator Orrin G.
Hatch, Republican of Utah, whether he would pursue a criminal
investigation of the interrogation programs.

Mr. Holder hedged his response, saying, “Senator, no one’s above the law,
and we will follow the evidence, the facts, the law, and let that take us
where it should.”

But he added, quoting Mr. Obama, that “we don’t want to criminalize policy
differences” and finally pleaded for time to study the matter.

“One of the things I think I’m going to have to do,” Mr. Holder said, “is
to become more familiar with what happened that led to the implementation
of these policies.”