November 15, 2010

From former President George W. Bush’s Decision Points book tour, one would think there was nothing wrong with waterboarding. In fact, one might conclude in order to be a strong leader, one has to have the "courage" or "guts" to request a terror suspect be waterboarded or else face the possibility of appearing weak. But, what waterboarding really happens to be is a war crime.

In Bush’s recently released memoir, he writes about the "choice between security and values" being real. He writes about consulting with "CIA experts" on "interrogation techniques." A legal review was conducted and an "enhanced interrogation program" that "complied with the Constitution and all applicable laws, including those that ban torture" was created. The technique of waterboarding was deemed by the CIA to do "no lasting harm."

Matt Lauer, a host on "The Today Show," recently interviewed Bush and asked why he thought waterboarding was legal. Bush answered, "Because the lawyer said it was legal…He said it did not fall within the Anti-Torture Act. I'm not a lawyer. But you gotta trust the judgment of people around you, and I do."

The lawyers around Bush --- people like David S. Addington, John Ashcroft, Jay Bybee, Steven G. Bradbury, Douglas J. Feith, Timothy E. Flanigan, William J. Haynes II, and John Yoo --- did tell Bush it was legal. They specifically crafted a legal justification for torture so the Bush Administration could get away with committing war crimes. As reported by Jason Leopold, Bush’s lawyers "hastily drafted" legal opinions after one prisoner had already been subjected to waterboarding and "violated ethical standards by collaborating with senior White House officials to create legal cover for violating anti-torture and other federal statutes after the fact, rather than providing objective advice for future actions.

Georgetown University Law Professor Jonathan Turley, who has appeared on MSNBC shows like "Countdown with Keith Olbermann" wrote a column in May of 2009 that discussed the case for prosecuting war crimes committed by the Bush Administration. He outlined how the "status of waterboarding as torture was established by the United States." Maj. Edwin F. Glenn, who used waterboarding in the Philippines in 1898, argued waterboarding was "justified under the necessities" but those arguments were rejected. Maj. Glenn was "court-martialed and convicted of the crime of torture."

Turley also outlines how "torture is a war crime." It is a crime under Torture Act, 18 U.S.C. § 2340. Torture is expressly prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a "binding law" that President Reagan signed.

Bush and lawyers who were involved in granting permission for torture of detainees like Abu Zubaydah would like Americans to believe the country could have been attacked if waterboarding had not been ordered. The Washington Post reported in March of 2009 the waterboarding of Abu Zubaydah "foiled no plots."

They’d also like Americans to believe that plots at Heathrow Airport and Canary Wharf in London were "foiled" thanks to waterboarding. But, a former British intelligence chairman told BBC Radio 4 Today that he doubted torture "actually produced information which was instrumental in preventing those plots coming to fruition."

In his book, Bush claims the U.S. was able to capture Khalid Sheikh Mohammed because Zubaydah was waterboarded. Yet, if that’s really true, why do so many military and defense experts claim torture doesn’t work?

It’s less likely that Zubaydah gave the military any new information and much more likely that interrogators asked something like, "Is Mohammed in Rawalpindi, Pakistan? Is he?" And, when he wanted the waterboarding to stop, he nodded "yes" and the interrogators determined that was a good enough confirmation that intelligence tips they had were correct and then forces moved in and captured Mohammed.

And, Bush’s answer of "damn right" to Director of Central Intelligence George Tenet, when he asked if he had permission to use waterboarding on Mohammed, is just another bitter indication that Bush did not think his Administration needed to adhere to international law.

Fortunately for Bush, Democrats, including Nancy Pelosi, despite being briefed on the use of waterboarding in 2002, did not think the Administration needed to be pressed on its committing of war crimes. In fact, the briefing’s only objection was reportedly that some members wondered if the torture technique had been "harsh enough."

The Obama Administration has effectively decriminalized waterboarding, torture, or war crimes by refusing to have the Department of Justice investigate or prosecute former Bush Administration officials who now boast openly about their involvement in committing war crimes. Advocacy groups have tried to have the lawyers involved in creating legal justification for torture disbarred but, given the lack of interest in following the country’s obligation to investigate and prosecute war crimes, the groups have been unsuccessful (perhaps, having their attempt to defend the rule of law labeled "left wing" by publications like the New York Times has something to do with their lack of success).

This is not "24." War crimes were determined long ago to be actions that should lead to punishment. Bush himself said when he was president, "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders.’"

So, in that case, Attorney General Eric Holder, there is work to be done --- work that will hopefully restore the integrity and moral standing of America.