What part of "the Law" don't you understand, besides all of it?Are laws only for foreign countries we don't like?
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In a recent address to the Assn. of Former U.S. Attorneys, Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney, noted that waterboarding, which the Bush administration’s Office of Legal Counsel declared legal in 2002 (the Justice Dept. now claims the CIA no longer uses it as an interrogation technique), had long been considered torture. In fact, it had earlier been prosecuted by U.S. authorities.
“I was astounded that the research by the OLC, which supported determining that waterboarding was lawful, had huge gaps in it,” Whitehouse told The Washington Independent last week. “They went so far as to go find some Medicare reimbursement statute to serve their purpose. One strains to find the relevance of that to enemy prisoner interrogation.”
“There are a whole variety of far more relevant things they could have found if they had taken a look,” Whitehouse continued, noting that the U.S. itself prosecuted waterboarding of American soldiers after World War II; waterboarding by American soldiers in the Philippines, and “water torture,” as it’s also been called — most recently by a local sheriff in Texas.
Atty. Gen. Michael Mukasey (WDCpix)
Other legal experts — some still government officials — have made the same point. In the Columbia Journal of Transnational Law, for example, Evan Wallach, a judge on the U.S. Court of International Trade and expert on the laws of war, wrote: “Not so very long ago, the United States, acting alone before domestic courts, commissions and courts-martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.”
Wallach declined to comment for this article, saying that these these issues could come before him or other federal judges. But in The Washington Post last year, Wallach noted that, among other instances, the U.S. initiated war crimes prosecutions against Japanese soldiers who water-boarded U.S. pilots during World War II.
However, John Yoo and his colleagues at the Office of Legal Counsel didn’t need to look back that far to learn that the United States has long considered the practice illegal. As recently as 1983, as Whitehouse reminded the former U.S. attorneys earlier this month, the Justice Dept. itself prosecuted a Texas sheriff who had used waterboarding to extract confessions from arrested suspects. Six former inmates testified that they had been waterboarded between 1976 and 1980.
Some lawyers who participated in that case are still at the Justice Dept. today. None returned calls for comment. In its written opinion affirming the conviction of County Sheriff James Parker, of San Jacinto County, and his deputies, the Fifth Circuit Court of Appeals in 1984 referred to waterboarding as “torture” a total of 12 times.
At a Senate Judiciary Committee hearing in July, Mukasey, responding to questions about the waterboarding case, U.S. v. Lee, said it wasn’t relevant because the officers were prosecuted under the civil-rights laws. “It was not a case that dealt with whether a technique is or isn’t torture under the torture statutes,” Mukasey said.
Peter Carr, a Justice Department spokesman, told TWI yesterday that the Lee prosecution “was fully consistent with the legal advice OLC provided to the CIA.”
Though “the attorney general has not reached any legal conclusion concerning the lawfulness of the technique as used by the CIA,” Carr added, “Prior to his confirmation, the attorney general made clear that if waterboarding were torture, it would be unlawful both under the Anti-Torture Statute and the Constitution. He subsequently reviewed the opinions of the Office of Legal Counsel as they apply to current techniques and found the opinions to be correct and sound.”
washingtonindependent.com
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Responding to a question about waterboarding from committee chairman Sen. Patrick Leahy, D-Vt., Holder said, "I agree with you, Mr. Chairman, waterboarding is torture."
Holder, who has been a vocal critic of the administration's policies in the war on terror, explained his stance further, saying, "If you look at the history of the use of that technique used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam."
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