House Democrats sent a letter to Attorney General Michael Mukasey Friday requesting that he appoint a special prosecutor to investigate whether White House officials, including President Bush, violated the War Crimes Act when they allowed interrogators to use brutal interrogation methods against detainees suspected of ties to terrorist organizations.
The letter, signed by 56 Congressional lawmakers, including House Judiciary Committee Chairman John Conyers, who is leading an investigation into the administration’s interrogation practices, says the International Committee of the Red Cross conducted an independent investigation of interrogation practices at Guantanamo Bay and “documented several instances of acts of torture against detainees, including soaking a prisoner’s hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball.”
“We believe that these events alone warrant action, but within the last month additional information has surfaced that suggests the fact that not only did top administration officials meet in the White House and approve of the use of enhanced techniques including waterboarding against detainees, but that President Bush was aware of, and approved of the meetings taking place,” the letter, dated June 6, says. The Justice Department is reviewing the letter, a spokesman said.
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However, Mukasey has defended the administration's interrogation policies, and with seven month to go before a new president is sworn into office, it appears unlikely that Mukasey would be act on the Democrats request. Earlier this year, Mukasey has appointed a special counsel to investigate the destruction of videotapes showing CIA interrogators subjecting detainees to waterboarding.
In April, President Bush told an ABC News reporter during an interview that he approved of meetings of a National Security Council's Principals Committee, whose advisers included Vice President Dick Cheney, former National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, former CIA Director George Tenet and former Attorney General John Ashcroft, where these officials discussed specific interrogation techniques the CIA could use against detainees.
"This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law," the letter to Mukasey says. “We believe that these serious and significant revelations warrant an immediate investigation to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act, the Anti-Torture Act, and other U.S. and international laws.”
In declaring that the United States does not engage in torture, Bush administration officials appear to be relying on a narrower U.S. definition of torture than that is accepted under international law, such as the 1984 Convention Against Torture that was signed by the Reagan administration in 1988 and ratified by the U.S. Senate in 1994.
“The threshold for torture is lower under international law: acts that do not amount to torture under U.S. law may do so under international law,” wrote Philippe Sands, law professor at University College London, in a column published in the Dec. 9, 2005, edition of The Financial Times.
“Waterboarding – strapping a detainee to a board and dunking him under water so he believes that he might drown – plainly constitutes torture under international law, even if it may not do so under U.S. law. …
“When the U.S. joined the 1984 convention it entered an ‘understanding’ on the definition of torture, to the effect that the international definition was to be read as being consistent with the U.S. definition The administration relies on the ‘understanding.’
“So, when Ms. Rice says the U.S. does not do torture or render people to countries that practice torture, she does not rely on the international definition. That is wrong: the convention does not allow each country to adopt its own definition, otherwise the convention's obligations would become meaningless. That is why other governments believe the U.S. ‘understanding’ cannot affect U.S. obligations under the convention.”
Torture Memo Based on Health Benefits Law
The document that gave the White House the legal cover it needed to authorize the CIA to use waterboarding and other tortuous methods during detainee interrogations was based on a statute governing health benefits.
John Yoo, the former deputy attorney general in the Justice Department’s Office of Legal Counsel (OLC) who drafted the legal opinion widely referred to as the ”torture memo,” concluded that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.
Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.
"That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Jack Goldsmith, the former head of OLC, wrote in his book, The Terror Presidency.
"The health benefits statute's use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like.... OLC’s clumsily definitional arbitrage didn't seem even in the ballpark."
Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network," Yoo wrote.
"In that case, we believe that he could argue that the Executive Branch's constitutional authority to protect the nation from attack justified his actions."
The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.
Yoo, Others, Under Investigation
The Justice Department's Office of Professional Responsibility (OPR) launched a formal investigation to determine whether Yoo, and other attorneys in the Office of Legal Counsel, provided the White House with poor legal advice when it drafted memos authorizing the use of “enhanced interrogation” methods.
In a Feb. 18, letter sent to Sen. Dick Durbin, the Illinois Democrat who requested the probe, H. Marshall Jarrett, the head of OPR, said his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco, who signed the “torture memo.”
"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett's letter says, adding that his office may release the findings of the investigation publicly.
Lt. Gen. Ricardo S. Sanchez, the top commander in Iraq who retired last year, instituted a “dozen interrogation methods beyond” the Army’s standard practice under the convention, according to a 2004 report on the prisoner abuse at Abu Ghraib prepared by a panel headed by James Schlesinger, as a result of an action memorandum, dated Feb. 7, 2002, that was signed by President Bush.
The memo Bush signed stated that the Geneva Convention did not apply to members of al-Qaeda or the Taliban.
Sanchez said he based his decision on “the President's Memorandum,” which he said had justified "additional, tougher measures" against detainees at Abu Ghraib, the Schlesigner report said.
Two years later, an internal FBI email emerged that said Bush had signed an Executive Order Bush’s Executive Order that authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq.
The American Civil Liberties Union released FBI e-mail in December 2004 after obtaining it through a Freedom of Information Act lawsuit.
Last month, the Pentagon announced that it decided to drop war-crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 attacks because the U.S. government would have been forced to reveal its own violations of the Geneva Convention, anti-torture statutes and the laws of war, according to lawyers representing al-Qahtani.
“All of the [incriminating] statements Mohammad al-Qahtani made or is alleged to have made were the result of torture or made under the threat of torture and that is in my view why the government decided to dismiss his case at this point,” said Vince Warren, executive director of the Center for Constitutional Rights (CCR) in New York.
CCR has been representing Mohammed al-Qahtani since 2005 and has led the legal battle for the human rights of detainees incarcerated at Guantanamo Bay, Cuba, for the last six years.
Al-Qahtani is believed to be one of the first detainees subjected to harsh questioning after the Justice Department issued a legal opinion in August 2002 permitting U.S. government interrogators to sidestep the Geneva Convention and use cruel and humiliating techniques, from forced nudity to stress positions to waterboarding, to extract information.
He was captured in December 2001. Much of the evidence against al-Qahtani was derived substantially from admissions that he made while under harsh interrogation. Last February, the Pentagon announced its intention to pursue the death penalty against al-Qahtani and five other men for their alleged involvement in the 9/11 attacks.
But on May 9, the Pentagon dismissed the case against al-Qahtani without explanation – and without prejudice, meaning that the charges could be reinstated at a later date. Though the charges were dropped, he will remain detained indefinitely at Guantanamo.
The harsh treatment of al-Qahtani was catalogued in an 84-page log of his interrogation that was leaked in 2006. The so-called “torture log” shows that beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IV’s, and left to urinate on himself.
On Dec. 11, 2002, interrogators began to apply what they called the “pride and ego down approach,” subjecting him to religious and sexual humiliation, making him bark like a dog, and calling him “a pig” as he was made to pick up piles of trash with his hands cuffed.
Gitanjali S. Gutierrez, an attorney with CCR and the lead attorney defending al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.
“Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’" Gutierrez said. “Those techniques were implemented under the supervision and guidance of [former Defense] Secretary [Donald] Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller.
"These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”
Gutierrez’s claims about the type of interrogation al-Qahtani endured have since been borne out by the release of hundreds of pages of internal Pentagon documents, which described interrogation methods at Guantanamo, as well as by the findings of two independent reports on prisoner abuse.
Rumsfeld’s action memo was criticized by Alberto Mora, the former general counsel of the Navy.
“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.
Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt, who said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Miller about the status of the interrogations between late 2002 and early 2003.
"Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime," the letter sent to Mukasey by House Democrats states. "Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs.
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