Mukasey, Waterboarding, and the CIA Tapes

V. S. Lynch

After the disappointing Alberto Gonzales finally resigned as Attorney General, many people hoped that President George W. Bush would nominate to replace him someone who would conduct the business of the Department of Justice as if justice were the Justice Department's actual business.

The actions of the Bush administration have led to many allegations of illegal activity on the part of people from the highest levels to the lowest. The activities of the Department of Justice under Alberto Gonzales did nothing to indicate that serious, thoughtful legal decisions were being given or that impartial investigations were being conducted.

In fact, the Justice Department itself has been tainted by allegations of questionable activities, to include the hiring and firing of attorneys based on their political affiliations, and the issuance of legal opinions based on furthering political agendas rather than consideration of the Constitution and other laws.

It is important to the country that the Department of Justice be led by a person of utmost legal probity; a person who will provide legal advice and pursue cases based on the law, rather than on political expediency or the expectation of personal or political favor

Among the problems besetting the Justice Department have been various decisions defining the treatment and interrogation of detainees, especially in the wake of the Abu Ghraib scandal and questions about treatment of detainees held at Guantanamo. A case in point is waterboarding. Basically, when a person being interrogated is tied down, and water is poured on his face to the point where he is choking and gasping and afraid he will drown, that is waterboarding. It leaves no bruises, causes no bleeding, and can be done over and over.

The Bush administration has repeatedly asserted that it does not torture. Many people maintain that waterboarding is torture, and legal opinions and precedents exist in support of that view. However, Congress has not specifically passed a law saying that waterboarding meets any legal definition of torture.

So when Bush nominated Michael B. Mukasey for Attorney General, Mr. Mukasey was able to say to the Senate Judiciary Committee: "Torture is unlawful under the laws of this country. It is not what this country is all about. It is not what this country stands for. It's antithetical to everything this country stands for.

Mr. Mukasey also indicated that he would not permit contact between elected officials and line assistants or U. S. attorneys with regard to specific cases, and that hiring judgments would be based on qualifications for the job rather than political affiliation. Finally, when Senator Arlen Specter asked Mukasey if he would resign, were the President to violate his (Mukasey's) advice on the Constitutionality of an action, Mr. Mukasey said he would.

And that seemed good enough. Although he was approved by the smallest margin of any attorney general in more than 50 years, on November 8, 2007, Michael B. Mukasey was approved as Attorney General.

Now we are learning who we really got. On December 19, in a speech before the American Bar Association, Mr. Mukasey made it clear that he supports a FISA (Foreign Intelligence Surveillance Act) bill that provides retroactive immunity for the communications companies that participated in warrantless surveillance of the American public. This surveillance is allegedly necessary to protect the United States from terrorists.

It appears this warrantless surveillance was taking place at least 6 months before the terrorist attacks of September 11, 2001. http://query.nytimes.com/gst/fullpage.html?res=9904E5DF163EF935A25751C1A9619C8B63
Yet, with all that information at their disposal, the Bush administration was not able to prevent those attacks. We would have been no worse off in terms of safety from terrorists, and much better off in terms of protection of our Constitutional rights, had such surveillance not been taking place.

Further, on December 6, 2007, we learned that the CIA had destroyed videotapes of the interrogation of two detainees. Possibly, one of the interrogation techniques captured on the videotapes was waterboarding. The tapes were made in 2002 and destroyed in 2005. On December 8 the CIA and the Department of Justice announced a joint inquiry into the interrogations and the destruction of the tapes.

Since the CIA and the Department of Justice each had some jurisdiction over the making and protection of those tapes, as well as the conduct of the interrogations, they are, ipso facto, investigating themselves. The Senate and House Intelligence Committees are both prepared to conduct their own investigations into the making and destruction of these tapes, as part of their larger investigations into allegations of torture and other possible illegal activities on the part of the CIA and the Justice Department.

However, Attorney General Mukasey has refused to allow the Justice Department to release information regarding its investigation into the destruction of the tapes, prompting the American Civil Liberties Union and other members of the legal community to call for the appointment of a special prosecutor to investigate the matter.

Mr. Mukasey sees no need for either Congressional investigations or a special prosecutor. He is content to allow the CIA and the Justice Department to investigate themselves, and to stonewall Congressional investigations into their activities. We are right back where we were with Alberto Gonzales.