TORTURE & UNIVERSAL DECLARATION OF HUMAN RIGHTS

I commented in a previous post about the recent 60th anniversary of the Universal Declaration of Human Rights, approved by the General Assembly of the United Nations on December 10, 1948.

Yesterday, the Senate Intelligence Committee published its report on the barbaric practices of the Bush government in using torture and other degrading treatment of prisoners at Abu Ghraib and Guantanamo.

Here are two conclusions of the Senate Armed Serice Committee:

Conclusion 1: On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.

The Bush government used "techniques such as waterboarding, nudity, and stress positions . . ." Did any of these Bush officials know that the Universal Declaration's Article 5 specifically prohibits these treatments and punishments which it terms "degrading" and "cruel" and "inhuman?"

Here is the text of Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Yet the Senate Committee gives evidence that Bush's cabinet as well as the National
Securities Council chaired by Condoleezza Rice knew and approved of these techniques. How could they go along? Were they all in the dark about the prohibition on torture and or cruel, harsh and inhuman methods of interrogation?

Water boarding has been used since time immemorial and has always been recognized as "torture." It was especially used during the years of the Inquisition, spanning several centuries, to elicit confessions from heretics and witches. Did Bush & gang really think it was effective then, so it must be effective now?

Let's have a truth commission haul these officials into a hearing room for testimony under oath. Let's hear their explanations of why they thought that the could justify torture and other cruel methods. Above all, let's try water boarding on them and see if they don't confess to witchcraft and/or conspiracy to commit terrorist acts. The point is anyone will confess to anything his interrogator wants when he is being tortured or water-boarded.

MUKASEY AFFAIRE SHOWS THAT SOME SENATORS CONDONE WATERBOARDING

I received this e-mail today from a friend on the Mukasey affaire. The author has given me permission to share it with my blog readers:

"Bush's nominee for Attorney General, Michael Mukasey, has refused to say whether waterboarding is torture. This guy was a federal judge (a life time appointment) and he says he doesn't know what waterboarding is and therefore he can't say whether it's torture or not. If we assume that he is being honest, i.e., he doesn't know what waterboarding, that leaves a lot to be desired in a "jurist." Even a high school student, without the benefit of knowledge of history, who has watched TV or read any newspapers over the past few years, is very likely to know what waterboarding is. And if Mukasey doesn't know that, then should we have an Attorney General who is that ignorant of the current issues.

"Of course, it's hard for me to believe that Mukasey doesn't know, it is more likely that he is covering for the Bush team who is perhaps afraid that this legal minutiae could at a later date save them from criminal prosecutions. Whatever his motives, it doesn't bode well for our society when have a nominee for Attorney General who doesn't know anything to replace an Attorney General who just couldn't remember anything.

"However, what is even more alarming than Bush nominating Mukasey is that democratic Senators Schumer and Feinstein have thrown their weight behind his confirmation. Senator Schumer said, "the best we can hope for is someone who will rebuild the Justice Department and remain independent, even when pressured by this Administration." Rebuild the Justice Department to do what?—Condone waterboarding, so we can now tell the world that our highest law enforcement official doesn't think waterboarding is torture and thus sending a signal to the torturers that it is not illegal, at least, not under his leadership at the Justice Department.

"Senator Schumer has put his own ego (he had suggested Mukasey to Bush) and in a face saving exercise condoned waterboarding. So much for checks from democrats on Executive power, and so much for standing up for what is right.

"Let's all tell Senators Schumer and Feinstein that waterboarding is torture, and torture is not an American or human value. Phone numbers for the Senators are: Feinstein: (202) 224-3841 and Schumer (202) 224-8542."

U.S. COURTS FIND WATERBOARDING "TORTURE"

Evan Wallach writes in today's The Washington Post on waterboarding. This is a must read article. Wallach is a judge on the U.S. Court of International Trade and a former JAG in the Nevada National Guard.

Wallach writes on the history of waterboarding as practiced on and by U.S. troops and the judgment of U.S. courts on those who practiced it. Writes Wallach:

"Here's the testimony of two Americans imprisoned by the Japanese:

""They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness.

"And from the second prisoner:

""They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.

"As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas."

Concludes Wallach:

"We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be."

BUSH & CHENEY COULD FACE CHARGES OF CRIMES AGAINST HUMANITY FOR ORDERING WATERBOARDING

Today's The New York Times has a story by Scott Shane and David Stout on the reluctance of Judge Michael Mukasey to admit what everyone else in the whole world already knows - that waterboarding is nothing else than torture and always has been since it was dreamt up to get information from captured enemy soldiers, spies, heretics et al.

Write Shane and Stout:

"Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004, wrote in his recent memoir, “The Terror Presidency,” that the possibility of future prosecution for aggressive actions against terrorism was a constant worry inside the Bush administration.

"“I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators, acting with the benefit of hindsight in a different political environment, would impose criminal penalties on heat-of-battle judgment calls,” Mr. Goldsmith wrote."

So top officials and White House bureaucrats are worried that they may be subject to criminal prosecution for ordering waterboarding because it is clearly a form of torture? If they were so worried about future charges brought against them, they must have realized before they ordered agents to use waterboarding that it was illegal as well as reprehensible and immoral.

Shane and Stout write:

"Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

"“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey."

We have a possibility here that even Mr. George Bush as well as Mr. Dick Cheney could be very well brought up on charges of war crimes and crimes against humanity. This is why they are so afraid of the new AG nominee saying what everyone else knows, that waterboarding is a form of torture. They live in fear that successive administrations and foreign countries will arrest them and make them face charges on their un-American actions.

PUNISH CIA AGENTS WHO PRACTICED WATERBOARDING

Judge Mukasey is apparently afraid of tipping his hand on whether waterboarding is torture. He does not want to incriminate those CIA agents and other federal agents who inflicted waterboarding and other methods of torture on suspected terrorists. (See story today by Dan Eggen in The Washington Post.)

Any CIA agents or government employees who engaged in waterboarding should be prosecuted. Republicans like to talk of "personal responsibility," and it should apply here a fortiori. Just because a CIA agent receives an instruction from a superior to subject a suspect to waterboarding is not justification for that agent to inflict this cruel harm. An agent can always quit. He or she can always refuse this unlawful order.

We all know waterboarding is a form of torture. It has a long unsavory history, dating back to at least the Inquisition where it was used on suspected heretics. It produced the results desired, namely, the "heretic," after nearly being drowned, always confessed to being allied with the devil.

As I have written in previous posts, Mukasey should volunteer to be the "suspect" in a test of waterboarding. Surely after the test, Mukasey can have a better idea of the nature of the "interrogation."

The same waterboarding should be the punishment for the CIA agents who are convicted of having inflicted it upon their captives. Surely if it is not cruel and unusual punishment and not "torture," then it would be a fitting penalty.

JUDGE MUKASEY REFUSES TO SAY IF WATER-BOARDING IS TORTURE

Judge Mukasey refuses to tell the Senate Judiciary Committee whether he considers "water-boarding" to be a form of torture. Dan Eggen writes for The Washington Post:

"Attorney general nominee Michael B. Mukasey told Senate Democrats today that a kind of simulated drowning known as waterboarding is "repugnant," but he does not know whether the interrogation technique violates U.S. laws against torture."

Remember water-boarding has been around since at least the Inquisition as a method of making heretics confess they were in league with the devil. And, frankly, it succeeded in getting people to admit their connection with Satan.

If Judge Mukasey does not have enough information to tell whether it is torture and thus illegal, I have a suggestion. Your Honor, experience it for yourself. Have some CIA agents come around to your chambers with a board with straps for you to lie on and be strapped down. Then have someone put a towel over your nose and mouth and head. Then pour water on top of it so that you are ingesting and breathing in the water. Undergo this "experiment" for at least five minutes.

I am sure that after this test, Judge, you will be most certainly an expert on whether water-boarding is torture. You then will surely testify that water-boarding is illegal both under U.S. and international law because it inflicts terrible psychological pain and destruction upon the victim.

In the meantime, the Senate Judiciary Committee should refuse to vote to let your name out of committee.

MUKASEY ASKED TO RETRACT STATEMENT ABOUT WATER-BOARDING

In today's The New York Times, Philip Shenon writes that Democrats on the Senate Judiciary Panel have signed a letter to Judge Michael Mukasey, Bush's nominee to be Attorney General, asking him to retract his statement about the legality of water-boarding.

Writes Shenon:

"All 10 Democrats on the Senate Judiciary Committee pressed Michael B. Mukasey, President Bush’s nominee for attorney general, on Tuesday for a clear-cut statement that the interrogation technique known as waterboarding, which simulates drowning and has been used by the C.I.A. against terrorism suspects, is illegal.

"In his confirmation hearings last week, Mr. Mukasey, a retired federal judge from New York, declined to say if waterboarding was torture or was otherwise illegal; he insisted he was not aware of how the technique was carried out."

Mukasey should be rejected unless he answers truthfully and directly. To think a former federal judge on the Court of Appeals would not know if water-boarding was torture is simply beyond belief. Mukasey was obviously defending the practices of Bush and Cheney, the people who are appointing him.

By refusing to answer and say that water-boarding is torture, Mukasey becomes a dangerous nominee. The president for all his powers does not have the power to violate the Constitution and all our other laws. The president may not violate an individual's rights under the Bill of Rights. In other words, the president may not make torture a legal action on his say-so because the president is subject to the rule of law just as the rest of us. Because Mukasey fudges and obfuscates on this central principle of American democracy, he does not deserve to be the chief law enforcement official of the United States.

JUDGE MUKASEY WILL BE TOP LEGAL U.S. OFFICER AND HE DOESN'T KNOW IF WATER-BOARDING IS TORTURE?

The negative reaction to Judge Mukasey's testimony on torture this past week before the Senate Judiciary Committee has not only not died down. It has increased. There were five letters in today's The New York Times, all decrying Mukasey's hedging, and both David Luban and Brian Tamanaha comment critically about his testimony on water-boarding in the legal blog Balkinization.

Writes Tamanaha:

"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain. He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

"At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff. Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture.

"For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."

And Luban presents an easy test for Mukasey and anyone else who equivocates on whether water-boarding is torture:

"So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering."

And here is a letter to the editor printed in today's NY Times by George I. Gordon:

"To the Editor:

"How can the United States hope to regain its position as a respected world leader on the great issues of human rights if its chief law enforcement officer cannot even bring himself to acknowledge the undeniable verity that waterboarding constitutes torture, applying any conceivable definition of that term?"

George I. Gordon, Bronx, Oct. 19, 2007

"The writer served as an assistant United States attorney in the Southern District of New York from 1958 to 1961 and was chief appellate attorney in the United States Attorney’s Office for that district, 1960-61."

MORE THOUGHTS ON JUDGE MUKASEY AND DEFINITION OF TORTURE

It strikes me as more than ingenuous for Judge Mukasey to claim that he is not familiar enough with "water-boarding" to opine whether it is torture or not. It does not take much legal thinking to see that it is cruel and inhuman. It makes the prisoner think he is going to drown and die. It causes the most excruciating psychological torment. And Judge Mukasey cannot give his opinion on whether he thinks it is torture.

One of the primary canons from the code of legal ethics is for the lawyer always to tell the truth in court. Lawyers can argue zealously on behalf of their clients, but they cannot deceive the court or dissemble to it. In other words, a lawyer cannot withhold evidence or create fictitious evidence or argument.

If this applies to lawyers in court, then a fortiori it must apply to appellate judges testifying to congress. Judge Mukasey has a duty both as a sworn witness and as a lawyer/judge to present his opinions honestly before the senate judiciary committee. He may not dissemble, nor may he deceive the congress.

However, when Judge Mukasey says he does not know for sure whether "water-boarding" constitutes torture, he leaves himself open to those who do not and would not believe him.

JUDGE MUKASEY - UNDERGO WATER-BOARDING TO SEE IF IT IS TORTURE

Marty Lederman has a post at Balkinization in which he marvels that a jurist of Judge Mukasey's stature cannot say for sure whether he thinks "water-boarding" is a form of torture and therefore unconstitutional. Mukasey has been an appellate judge on the Second Circuit Court of Appeals in New York. So this is someone who has had lifetime tenure as a federal judge under Article III of the Constitution. Yet he is not prepared to say that water-boarding is cruel and unusual and therefore illegal.

I have a suggestion for Judge Mukasey. Try it out on yourself. Ask some CIA agents to come over to your office and perform it on you. Let them tie you to a board, put a cloth over your head and face, and then pour water on it and you. Then you will be better prepared to say whether it is torture.