Rumsfeld and Mukasey, Tortured Times and Trials

Mukasey: Waterboarding is Torture if It's Torture

copyright © 2007 Betsy L. Angert. BeThink.org

It has been tried before. Efforts failed. Nonetheless, I remain hopeful. I have always believed, "Never, never give up!" Thankfully, several Human Rights organizations in the United States and Europe trust in the same principle. They persevere. On Thursday, October 25, 2007, the International Federation for Human Rights, the French League for Human Rights, and the Center for Constitutional Rights in New York, filed a formal grievance in a Paris court. The complaint stated former Secretary of Defense, Donald H. Rumsfeld authorized torture at Guantánamo Bay, Cuba, and at the Abu Ghraib prison in Iraq, The writ states, Rumsfeld violated the 1987 Convention Against Torture Act.

While Rumsfeld wrestled with his past, on the floor of United States Senate Judge Michael B. Mukasey pondered his future. This Bush appointee was asked if "enemy combatants" were tormented, would he, as the Attorney General deem himself accountable. Senators questioned Michael B. Mukasey extensively, albeit civilly. They inquired, if he were approved for the Attorney General position would he accept responsibility for reprehensible actions, or did he not think torture wrong. The nominee hedged and hummed just as Rumsfeld had in the past.

Mukasey blurred the lines that define the methods used to inflict physical pain on people. In a trial of sorts, Judge Mukasey told the Senate he might be the mirror image of his predecessor, Alberto Gonzales. Today, the times are tough for those that think detainees deserve to be subjected to waterboarding.

We recall, the infamous former Attorney General, Alberto Gonzales. Gonzales was the man behind the Justice Department curtain. He clarified the terms and authorized severe means for obtaining actionable intelligence from detainees. Henchman for Vice President Dick Cheney, and of course, friend of the President, Attorney General Gonzales sanctioned measures that allow soldiers to 'crush a captives will to resist.'

Gonzales, who served as Counsel to the President, was part of a powerful team of lawyers. Legal eagles for the Administration helped to redefine Executive Privilege. White House Attorneys expanded Presidential powers. Thus, cruel and unusual punishment for enemies of the State was made possible. It is for this reason, today, Senators seek to understand Mukasey. Those in Congress hope to avoid another debate over the legality, Constitutionality, of inhumane treatment inflicted on those suspected of being terrorist. A bit of ancient history might help to explain the caution we witnessed this week.

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line into torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

That same day, Aug. 1, 2002, Yoo [John Choon Yoo, best known for his work from 2001 to 2003 in the United States Justice Department Office of Legal Counsel] signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government has prosecuted as a war crime since at least 1901. The opinion drew the line against one request: threatening to bury a prisoner alive.

With the policy in place, Secretary of Defense Rumsfeld did as he thought best. He sanctioned cruelty against combatants. Extracting information by any means, no matter how extreme seemed reasonable to those bent on battle. Donald Rumsfeld, blessed by Bush and Cheney and their interpretation of the constitution enforced, endorsed, the use of methods such as waterboarding. Then, he, and the White House claimed, "We do not torture."

Concurrently, the man that now seeks to head the Justice Department, Michael B. Mukasey mulled over Presidential powers. Mukasey questioned the punitive measures the Bush Administration adopted. Then, Judge Mukasey, a Reagan appointee served as the Chief Judge for the Southern District of New York. He presided over the José Padilla case. Padilla was a prisoner held in Guantánamo Bay detainee camp in Cuba.

After Padilla was first detained in April 2002 and declared an "enemy combatant," he was held incommunicado, denied all access to the outside the world, including counsel, and the Bush administration refused to charge him with any crimes. A lawsuit was filed on Padilla's behalf by a New York criminal defense lawyer, Donna Newman, demanding that Padilla be accorded the right to petition for habeas corpus and that, first, he be allowed access to a lawyer. That lawsuit was assigned to Judge Mukasey, which almost certainly made the Bush DOJ happy.

But any such happiness proved to be unwarranted. Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers. He issued these rulings in 2002 and 2003, when virtually nobody was defying the Bush administration on anything, let alone on assertions of executive power to combat the Terrorists. And he made these rulings in the face of what was became the standard Bush claim that unless there was complete acquiescence to all claimed powers by the President, a Terrorist attack would occur and the blood would be on the hands of those who impeded the President.

Now, as we bathe in blood abroad, and fear the carnage will follow us home, we realize that Michael B. Mukasey was not as he initially appeared. When pressed, nominee Mukasey does not condemn the Administration. He does not argue with the White House on all counts, and perhaps, forcing those presumed to be enemies is apt. Indeed, fair hearing for foes of the State are not necessary, or so says Judge Michael B. Mukasey.

[Mukasey] He argued that the prosecution of Jose Padilla —which Mukasey handled until his retirement from the bench last year—demonstrates that federal courts should not try terrorists. Never mind that after the government jerked Padilla in and out of the federal system and reportedly subjected him to serious abuse, he was convicted by a jury on charges that bore little relation to the allegations that former Attorney General John Ashcroft originally—and so publicly—made against him.

According to Mukasey, Padilla's case does not stand for the victory of security concerns over civil liberties in federal court, but rather shows why "current institutions and statutes are not well suited" to terrorism cases. The rules for ordinary criminal defendants—that is, regular old constitutional law—should not apply to bad guys "who have cosmic goals that they are intent on achieving by cataclysmic means."

Mukasey derides terrorism prosecutions in federal court for putting "our secrets at risk" and discouraging our allies from sharing information with us. He warns of dire results if the Supreme Court rules this upcoming term that Guantanamo detainees have a right to bring their claims in federal court. An alleged terrorist could insist to his interrogators that he wanted to see a lawyer, as Khalid Sheikh Mohammed supposedly did, and "this bold joke could become a reality."

Mukasey doesn't offer his own fix but floats two proposals that have been offered by others: "[t]he creation of a separate national security court" with life-tenured judges and the use of civil commitment standards for the mentally ill for other "dangerous people." Most surprisingly, Mukasey suggests that Congress might need "to modify the Supreme Court's appellate jurisdiction."

What is justice for those assumed innocent would not be applied to persons deemed guilty by the world's superpower, the leaders of the United States. In times of war, terrorists must be dealt with severely. Yet, I wonder, how do we determine who the insurgents might be. Who will define the line drawn between a person fighting for the sovereignty of their homeland, and one that transgresses against another nation.

For me, war is an offense against mankind. Those that command others to kill are criminals. I understand that the vast majority of people think my belief is naïve. I am dismissed as a peacenik. Nonetheless, thankfully, worldwide, after centuries of strife, humans have come to question the sanity or humanity of torture.

In the last few years, fear has flourished. Talk of terrorism fueled much fire. Guns blazed. Bombs dropped. Enemy combatants were gathered together. Prisons were filled and the rights of people were ignored. Geneva Conventional wisdom was weakened. The Bush Administration concluded the rules were quaint. Torture passed for justice and habeas corpus was no more.

Perhaps, one day, justice for more than "just us, Americans" will again prevail. That is the hope of Michael Ratner, the President of the Center for Constitutional Rights. It is my wish as well. I have faith that the families and friends of those that suffered, no matter their country of origin, also dream of better days. For now, we only have the news and our dreams.

Groups Tie Rumsfeld to Torture in Complaint
By Doreen Carvajal
The New York Times

Paris, Oct. 26 — Several human rights organizations based in the United States and Europe have filed a complaint in a Paris court accusing former Defense Secretary Donald H. Rumsfeld of responsibility for torture.

The group, which includes the International Federation for Human Rights, the French League for Human Rights, and the Center for Constitutional Rights in New York, made the complaint late Thursday and unsuccessfully sought to confront Mr. Rumsfeld as he left a breakfast meeting in central Paris on Friday.

Jeanne Sulzer, one of the lawyers working on the issue for the human rights groups, said the complaint had been filed with a state prosecutor, Jean-Claude Marin, saying he would have the power to pursue the case because of Mr. Rumsfeld’s presence in France.

Similar legal complaints against Mr. Rumsfeld have been filed in other countries, including Sweden and Argentina. German prosecutors dismissed a case in April, saying it was up to the United States to investigate the accusations.

The French complaint accuses Mr. Rumsfeld of authorizing torture at Guantánamo Bay, Cuba, and at the Abu Ghraib prison in Iraq, and says it violated the Convention Against Torture, which came into force in 1987. . .

Michael Ratner, the president of the Center for Constitutional Rights, said in a statement that the aim of this latest legal complaint was to demonstrate “that we will not rest until those U.S. officials involved in the torture program are brought to justice. Rumsfeld must understand that he has no place to hide.”

Rumsfeld may have thought he worked his way through the havoc he created. The former Secretary of Defense may have believed retirement would free him from responsibility for woes and wars he helped to create. However, perhaps, the adage is true. We cannot hide from our history.

Tides do turn. This week the seas are turbulent. Perchance, Rumsfeld can never fully resign. Nor can he negate responsibility. Torture, may ultimately be seen as what it is, a serious transgression. Those that support the premise, we must suppress the spirit of those that may possibly oppose us may realize their just reward.

Michael B. Mukasey may not sail through his Senate hearings. Waterboarding may be the wave that does this Jurist in. Democrats may develop the gumption to ride the rippling effect of outrage. They too may denounce the deplorable practices that mark Americans as arrogant. As I read the reports, hope is high among peaceniks [humanists] such as I.

Denounce Waterboarding, Democrats Tell Nominee
By Philip Shenon
The New York Times
October 27, 2007

Washington, Oct. 26 — The nomination of Michael B. Mukasey as attorney general encountered resistance on Friday, with Democratic senators suggesting for the first time that they might oppose Mr. Mukasey if he did not make clear that he opposed waterboarding and other harsh interrogation techniques that have been used against terrorism suspects.

The ranking Republican on the Senate Judiciary Committee, Arlen Specter of Pennsylvania, joined in the expressions of concern about Mr. Mukasey. Mr. Specter said in an interview Friday that the nomination could hinge on Mr. Mukasey’s written responses to questions posed to him this week about the Bush administration’s antiterrorism policies, including its use of interrogation techniques like waterboarding, which simulates drowning, and about his larger views on executive power.

At his Senate confirmation hearings last week, Mr. Mukasey, a retired federal judge from New York, declined to say whether he agreed with many lawmakers and human rights groups that waterboarding is a form of torture and is unconstitutional. He said he did not know the details of how waterboarding, which has been used by the C.I.A. against senior leaders of Al Qaeda, was conducted. In waterboarding, interrogators pour water onto cloth or cellophane that has been placed over the face of a suspect, creating the sensation of drowning.

In an initial letter to the Judiciary Committee that was dated Wednesday and made public Friday, Mr. Mukasey repeated the assertion he had made at his confirmation hearings that torture was unconstitutional and a violation of American obligations under international treaties. But once again, he did not address the question of whether waterboarding was torture. In the letter, he also repeated his suggestion that the administration’s program of eavesdropping without warrants was legal despite criticism by lawmakers that it violated terms of federal surveillance laws.

Until this week, the nomination of Mr. Mukasey to replace Alberto R. Gonzales as attorney general appeared to be a sure thing. Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil. Apart from Mr. Specter, no Republicans on the Judiciary Committee have raised public doubts about the nomination.

It is good to know that reservations are realized. There is reason to dream. Imagine, the impossible is achievable. Naïve as I might be, the news of the day brings me joy. It furthers my belief. One day there will be peace planet wide. Perhaps, world harmony will occur in my lifetime.

Never, Never, Never Give Up. Will Justice Prevail . . .

Groups Tie Rumsfeld to Torture in Complaint By Doreen Carvajal. The New York Times. October 27, 2007

pdf Groups Tie Rumsfeld to Torture in Complaint By Doreen Carvajal. The New York Times. October 27, 2007

Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. Office of the High Commissioner 
for Human Rights.

U.S. Releases Human Rights Report Delayed After Abuse Scandal, By Glenn Kessler. Washington Post.Tuesday, May 18, 2004; Page A15

pdf U.S. Releases Human Rights Report Delayed After Abuse Scandal, By Glenn Kessler. Washington Post. Tuesday, May 18, 2004; Page A15

Denounce Waterboarding, Democrats Tell Nominee. By Philip Shenon. The New York Times. October 27, 2007

pdf Denounce Waterboarding, Democrats Tell Nominee. By Philip Shenon. The New York Times. October 27, 2007

Pushing the Envelope on Presidential Power, By Barton Gellman and Jo Becker. Washington Post. Monday, June 25, 2007

pdf Pushing the Envelope on Presidential Power, By Barton Gellman and Jo Becker. Washington Post. Monday, June 25, 2007

Michael Mukasey's role in the Jose Padilla case, By Glenn Greenwald. Salon. September 16, 2007

Measuring Mukasey, By Emily Bazelon. Slate. September 17, 2007

Posted by Betsy L. Angert on October 27, 2007 at 11:28 PM in Abuse, Alberto Gonzales, Attorney General , Bush 43 Administration, CIA Prisons, Ethics, Politics, Secretary of Defense Donald Rumsfeld, Terrorism | Permalink | Comments (0) | TrackBack

Grim, Tortuous Fairy Tales, By Bush Administration; Ghost Writer, Justice Department

copyright © 2007 Betsy L. Angert. BeThink.org

Sit down my child and you shall hear the tale I tell of what was once revered. I know you are sleepy and need your rest. Perhaps, this parable will be the best anecdote for a body too busy to slumber. Close your eyes and count the sheep, as I whisper words that might make you weep. The fable is horrific, as most fantasies are. Nonetheless, my hope is the narrative will bestow great wisdom. When we contemplate the harsh realities of life we learn lessons. There are principles to digest, my darling. Too few discover; too many forget.

Once upon a time, on the morning of October 4, 2007, The New York Times reported, the United States government endorsed the use of severe and cruel methods during interrogation. The decision was delivered in secret.

Two years earlier Americans were told the Justice Department forbade such measures. Yet, in truth they never had. This, dear one, is characteristic in a White house gone wild with power. In this our surreal Orwellian world, to torment is to be compassionate. To crush the body and spirit of a living soul is apparently considered conservative, neoconservative.

Americans in the year 2007 are as Alice in Wonderland. We observe ourselves in the looking glass, and we wonder. Is up, down; is the mission accomplished, or is this a protracted exercise extended indefinitely into the future. My child I sense you are confused and disheartened. So too am I. Take heed. In time, sleep will come. Dreams will fill your head. My hope is you will forget all the misery I speak of, just as others have done so many times before you.

I remind you of what we each experience daily. In recent years, the public has become dubious. Most suspect the current Bush Administration, our nation's leaders, falsify, tells half-truths, conceal, claim confidentiality, fabricate, or flounder. Nonetheless, citizens remain complacent. This recent October surprise is not treated as a revelation. It does nothing to excite or incite us into authentic action. As citizens, we do as we have done before, as you too shall do soon. We sleep. We utter barely a peep.

Granted, residents of the United States rant from the comfort of their over-stuffed chairs. Countrymen complain as they, we choke on the fumes from our grand gas-guzzlers. Yet, we drive. Millions of people fly inter and intrastate. Many travel abroad, just for fun, business too. Americans continue to pollute the skies. We resent the war for oil, the profits made on such a repugnant endeavor.

Citizens carp as we contemplate the cost of combat. The people are aware, that money could have been spent at home. The nation mourns the loss of life, American deaths and at times, the passing of an Iraqi. In cyberspace, communities clamor through their keyboards. Then we rest on our laurels.

Progressives say they elected a Democratic Congress. Certainly, that would make a difference. The 110th Congress, with Democrats in control, claim the first one hundred days a success. Yet, the war marches on.

For soldiers in Iraq and Afghanistan, time stands still. Families and friends hold their breath, fearful fathers, mothers, sons, and daughter will never return home. Those that have returned to native shores are not the same. Although, 'enemy forces' have not captured the American soldiers that found their way back to the States, the troops have been tortured.

Soldiers dressed in camouflage have stayed away too long. Each day American men and women awake in a land far from their native shore. Enlistees that once believed they had purpose; they could bring freedom to Iraqi have seen the cost of liberty is not cheap. The price is far greater than these young persons ever expected to pay. Children, barely out of high school have seen blood and the guts of their friends splattered on their shoes.

War on the streets of Baghdad is nothing like the battles on a video screen. Death, in the name of democracy, or G-d is not as holy as our leaders would want us to believe. American troops have witnessed an effective insurgency, one beyond imagination. Rebels that feel they have a cause are never as groomed in warfare as a trained soldier may be. Speaking on the resourcefulness of Iraqi revolutionaries Sergeant Benjamin Flanders, Army National Guard states . . .

It was very effective, and the thing they have us beat at is the human intelligence side. Maybe you can speak more to this, but they can use cruel and unusual methods in order to extract information from people that we couldn't use. There is sort of this, like, torture -- that word is getting thrown around -- well, the true torture is when you behead innocent civilians and throw them on the side of the road, which we came upon more than once. That's how they get their message across.

Torture is the topic of the day. It was in 2005. It has been the source of much discussion for years, ever since this strange, fantastic, dreamlike drama began. You my dear sweetness might recall, we read fables together so long ago. By candlelight, on another quiet evening, we gazed upon the pages and pondered.

I tucked those texts away. There they sit safe on the bookshelf. I sensed when we read these memorandums together they were too severe, too shocking; they upset you so. My darling the words on those pages, the images they evoked were too much for me. In truth, I was emotionally paralyzed by the verbiage. What I envisioned weighed on my heart. What have we wrought. The havoc, the harm, one human might do to another. It is unthinkable. Perhaps, one day we will wish to review the references again. For now, may they just remain close at hand.

Bush Administration Documents on Interrogation

Jan. 22, 2002: Justice Department Memo to the White House and Pentagon Counsels

Feb. 1, 2002: Letter to President Bush From the Attorney General

Feb. 7, 2002: Justice Department Memo to the White House Counsel

Feb. 7, 2002: Memo Signed by President Bush

Memorandum, General Counsel, Department of Defense.

A related one-page summary document