Taking a stand on torture

NOVEMBER 7TH, 2007 | TomHarkin

(Cross-published on www.dailykos.com)

The Washington Post recently editorialized on Attorney General nominee Michael Mukasey and torture, in which the wise men of the Washington Post stated that Congress “should do something which, for all the rhetoric, they have so far declined to do: ban torture.”

In fact, Congress has banned torture. Simply because this Administration believes it has the inherent authority to ignore the law and has consistently distorted the meaning of the word “torture” does not mean that Congress has not done so.

Congress has consistently made clear that torture is a violation of our highest values and is simply not permitted. Over fifty years ago, in 1955, the Senate ratified the Geneva Convention. Common Article 3 of that Convention expressly prohibits torture, as well as “cruel treatment.” In 1990, the Senate ratified the Convention Against Torture, which obligated the United States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Just last year, Congress adopted the Military Commissions Act, which expressly prohibited “cruel, inhuman and degrading” treatment of prisoners.

Nor can there be any question that waterboarding – a horrific practice going back to the Spanish Inquisition – is prohibited. As John McCain has described it, it is a “very exquisite torture.” Rear Adm. John Hutson, former Judge Advocate General of the Navy, has stated that “other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history,” adding, “It has been repudiated for centuries.”

Going back to the Spanish-American War, the U.S. military has brought charges against those who practice this terrible interrogation technique. In passing the Military Commissions Act, Congress made quite clear that interrogation techniques like waterboarding are expressly prohibited.

I am disappointed that the Post chose not to mention what is clear law, and I am troubled that, given this history, Judge Mukasey could not answer what is a simple question: is waterboarding torture? It is equally troubling that Judge Mukasey, in his answers to the Senate Judiciary Committee, failed to answer that other terrible practices which this Administration has used, are illegal. These include inducing hyperthermia or heat stress, forcing prisoners to stand naked, using dogs, beatings, and most remarkably the use of electrical shocks. It is sad that an esteemed judge with the highest reputation in our legal community cannot unequivocally state that these practices are illegal.

This issue is very personal for me. I have seen first hand the terrible damage to our reputation and our war efforts that result when we do not live up to our highest principles. In 1970, as a staff assistant to a committee in the House of Representatives, I traveled to Vietnam. There, I saw, and brought back photographs of the so-called tiger cages at Con Son Island, off the coast of Vietnam, where Viet Cong and some North Vietnamese prisoners, were held, incommunicado, tortured and killed, with the full knowledge, support, and sanction of the United States, all in clear violation of the Geneva Convention.

I saw then, and I am seeing today, the damage the use of torture does to our reputation. Practices that certainly rise to the level of torture, as well as the continued operation at the detention center at Guantanamo Bay, have hurt our ability to wage an effective fight against the terrorists who attacked us on September 11, 2001. They are used in our enemy’s recruiting efforts and by those who wish harm to our brave soldiers.

Torture, including waterboarding, is illegal. Congress has said so, and I believe that Judge Mukasey knows it. It is cause of grave concern when he can not say so and this Administration continues to believe it can ignore the clear mandate of the law.

Regrettably, because this Administration has chosen to ignore the clear letter of current law, Congress must yet again reiterate that torture such as waterboarding is immoral, ineffective and most definitely illegal. That is why I support efforts to forbid the use of interrogation techniques not explicitly authorized in the army field manual—including waterboarding.

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On November 8th, 2007 at 04:34 PM, Brad Johnson wrote:

Thank you very much.

I have three, perhaps naive questions:
  1. Could the Senate make passing this law a precondition to approving Mukasey?
  2. Could the Senate make the appointment of an independent prosecutor a precondition to approving Mukasey? (as they did with Richardson & Watergate?)
  3. What is your interpretation of this part of Mukasey’s testimony, particularly in light of what Sen. Schumer has claimed were Mukasey’s assurances to the seeming contrary?
LEAHY: Well, Judge, I’ll spell this out a little bit more clearly with you.

But I would like your answer back, in writing, before this matter is brought up before the nomination is brought before the committee.

And, lastly, where Congress has clearly legislated in an area, as we’ve done in the area of surveillance with the FISA law, something we’ve amended repeatedly at the request of various administrations, if somebody—if it’s been legislated and stated very clearly what must be done, if you operate outside of that, whether it’s with a presidential authorization or anything else, wouldn’t that be illegal?

MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

LEAHY: Can a president authorize illegal conduct? Can the president—can a president put somebody above the law by authorizing illegal conduct?

MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.

Can the president put somebody above the law? No. The president doesn’t stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution.

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