A Tortured Defense;
The guessing game is over. We know the U.S. government OK’d and utilized waterboarding. So what — if anything — are we going to do about it?
Consumers are often faced with difficult choices between product styles in today’s diverse market. There is Chicago vs. New York style pizza. Memphis vs. Texas style barbecue. Swedish vs. Japanese style massages. It is not surprising, therefore, that when the Bush administration decided to get into the torture business, it had to shop around.
This shopper’s dilemma of choices was evident in the twisted testimony given this month by Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel and one of the central figures in the Bush torture controversy. While it received relatively little attention, Bradbury not only acknowledged a formal program of waterboarding, he also casually distinguished President Bush’s approach from historical models such as waterboarding by the Spanish Inquisition. Though Bradbury insisted that the “only thing in common is, I think, the use of water,” he omitted that other common denominator: pain. Indeed, the primary difference appears to be that the administration rejected water ingestion rather than water saturation to cause the pain. It turns out that the administration thought seriously about its own style of waterboarding and opted for a Khmer Rouge style over the Spanish style.
For civil libertarians, it was like having the Inquisition’s Tomas de Torquemada calmly testifying on “10 charming facts about torture.” Yet, while members of Congress are falling over themselves this month to demand criminal charges in the scandal over performance-enhancing drugs in baseball, there is a conspicuous silence in the wake of Bradbury’s torture tour de force.
For months, both parties hid behind the rationalization that the torture program remained a mere allegation to avoid the looming criminal question. Indeed, Attorney General Michael Mukasey refused to recognize that waterboarding has been declared as torture by both domestic and international courts — noting that it would be speculative. After Democrats rescued his nomination from imminent failure over the torture question, Mukasey simply refused to answer the question even after the torture program was confirmed.
The company we keep
Even our closest allies, such as Britain, have stated the obvious: The United States is now an official member of torture-practicing nations. We share this distinction with such kindred spirits as North Korea, Egypt, Saudi Arabia, Iran and Burma. It has been disclosed that both Democratic and Republican members of Congress have known for years about the torture program. Current and former officials have confirmed the use of waterboarding. One of the CIA’s interrogators, John Kiriakou, publicly discussed the use of waterboarding on detainees and agreed that it was torture.
The question now is how do you ignore a torture program that is hiding in plain view? After all, Bradbury did everything short of cheerfully demonstrating the technique on a detainee for the education and amusement of House members.
Bradbury helpfully explained that the administration did not adopt the Inquisition technique of forcing the suspect to swallow large amounts of water and stomping on his stomach. In fact, Bradbury’s quaint historical discussion might have been a bit off on this point. The toca or tortura del agua, as it was known, varied, and one technique involved putting a cloth into the mouth of the victim and then forcing water to be ingested to simulate drowning. One does not use the stomach-stomping approach when one is trying to torture suspects into giving up information (as opposed to converting or killing heretics). They have a nasty habit of dying.
As Bradbury’s testimony and various reports indicate, the Bush administration opted for the standard variation of the tortura del agua of putting a cloth or a piece of plastic over the face of the victim while pouring water over his face. It achieves the same sensation of drowning and the inability to breathe. This technique was used by governments such as Cambodia’s Khmer Rouge under Pol Pot.
Perhaps there will be some who might be offended that we are importing torture techniques rather than producing our own “made in America” style. But there is one unique element to American waterboarding: Our legal system denies the president the power to order criminal acts.
Blame the lawyers
In refusing to allow a criminal investigation, therefore, Mukasey has chosen an argument often used by criminal defendants: He blamed the lawyers. It was not a crime, Mukasey has said, because Bush relied on advice from his handpicked lawyers. Because the lawyers said it was OK, it was: “Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.”
Of course, any crime could be magically transformed into a non-crime by simply hiring clueless or collusive counsel. Ironically, while Bradbury was one of those misguided lawyers, Mukasey is seeking his confirmation as one of his top lawyers. It is enough to make the most mobbed-up lawyer blush.
After Bradbury’s useful primer on torture, the only uncertain thing about waterboarding is not the program but any remaining principles in Congress. If Mukasey refuses to fulfill his oath and investigate a criminal torture program, Congress has the power to investigate these crimes and demand a special prosecutor. Regardless of whether we like our waterboarding with a Latin or Asian flare, it remains torture, and torture remains a crime — not a question of style. We just need someone in Congress who can see — and act on — the difference.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s board of contributors.
USA TODAY: February 27, 2008