Trail of Torture Tapes

What did Bush know and when did he know it? Will the next president pardon him?

You don't have to be a law student to know that in 2005, when the CIA destroyed hundreds of hours of videotapes of "coercive interrogations" in its secret prisons—including waterboarding and other tortures—the obliteration of hard evidence was criminal obstruction of justice.

We had thought photos of prisoner abuse in Iraq's Abu Ghraib prison were obscene (and they did prove to be valuable recruiting tools for Al Qaeda and its affiliates), but we can only imagine the effect on world opinion that the filmed waterboarding of a terrified prisoner by his CIA interrogators would have.

After Mark Mazzetti's breakthrough New York Times story of the vanished videotapes, official investigations were begun, starting with a combined inquiry by the Justice Department and the CIA, the latter headed by its inspector general. Simultaneous probes were to start by the House and Senate intelligence committees.

Our new attorney general, Michael Mukasey, initially refused to provide Congress with information on any involvement the Justice Department might have had in the destruction of those videotapes—because, Mukasey said, he wanted to avoid "any perception that our law enforcement decisions are subject to political influence." But wasn't his appointment "political" in the first place?

It remains unclear how much Mukasey will cooperate in turning documents over to congressional committees that might shed hard light on who authorized the scrubbing of the tapes and whether, good gracious, any laws were broken.

In the meantime, Mukasey says he is still studying classified information to decide whether waterboarding is torture. As a dedicated public official, he might try it himself.

When Mukasey was nominated by the president—and then proudly rushed through confirmation by New York senator Chuck Schumer—I wrote that the new attorney general was in Bush's pocket, noting that in a Wall Street Journal article, Mukasey had opined before being nominated that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism." That would include the Justice Department he now heads.

The head and ranking member of the House Intelligence Committee, Silvestre Reyes (D-Texas) and Peter Hoekstra (R-Michigan), were "stunned" that Mukasey—so widely admired by the legal community, especially in New York—at first said he would block their investigation into this even more stunning cover-up by the CIA of torture in its "black sites."

Reyes and Hoekstra assure Americans (and the watchful world, including our smirking enemies) that they will "use all the tools available to Congress, including subpoenas" to get the Justice Department and the CIA to give the people's house documents and witnesses.

I'd be surprised if the Senate does not—when necessary—remind the director of central intelligence, General Michael Hayden, and our attorney general that, contrary to what their commander in chief claims, the separation of powers has not been whited out of the Constitution.

The very notion that the Justice Department could be trusted to conduct an investigation of itself is also stunning in view of the undeniable fact that the department's Office of Legal Counsel, beginning in 2002, secretly authorized torture in interrogations—and not only by the CIA. After that memo was withdrawn a year later by the appalled new head of that office (who didn't last long in the job), torture was covertly reauthorized in 2005 by the Justice Department.

Michael Mukasey was himself confronted with a reminder of the torture record of his department on December 7. In his office that afternoon was Caroline Frederickson, Washington legislative director of the ACLU. A rarity in the capital, she speaks truth very plainly to power, and told the attorney general that he had a credibility problem in this investigation. She tells me that Mukasey, dutifully taking notes, didn't deign to reply. He didn't have to. After all, he's our chief law-enforcement officer.

Logically, and necessarily, Frederickson is leading the ACLU's call for Mukasey to appoint an independent counsel to dig deeply into the question of accountability—all the way up the chain of command—for this administration's trail of torture.

Even if Mukasey is ultimately unable to subvert congressional investigations of the CIA videotapes, will any of the committees subpoena the ultimate perpetrator of our war on terrorism to testify on his role?

On September 17, 2001, George W. Bush made the CIA his own private militia, by a command order, to hunt down Al Qaeda operatives and interrogate them by any means necessary.

Then, on February 7, 2002, regally disdaining both the courts and the Congress, he decided, in an executive order, that Common Article 3 of the Geneva Conventions on the treatment of prisoners— signed by this country—doesn't apply to captured members of Al Qaeda or their fellow ruthless killers in the Taliban. (Common Article 3 forbids the "mutilation, cruel treatment and torture" as well as "humiliating and degrading treatment" of prisoners.)

The president clearly does not want the investigations into the destruction of those annoying videotapes to reach the Oval Office. As his spokeswoman, Dana Perino, proclaimed on December 12: "The entire [CIA] program has been legal."

Among the contenders for the presidency, only Democratic senator Joe Biden has been bold enough to make the connection. "This goes straight to the Oval Office," he said, demanding that a special counsel be appointed. Speaking irreverently of the attorney general, Biden added: "He's the same guy who couldn't decide whether or not waterboarding was torture, and he's going to be doing this investigation?"

Biden—the most qualified presidential aspirant because of his knowledge of foreign policy and the Constitution (which he has taught in a Delaware college since 1991)—has no chance of moving into the Oval Office himself. But if there is an uprising of our representatives in Congress to force Mukasey to appoint an independent counsel, a continuing probe all the way into this administration's waterboarding of the Constitution could create George W. Bush's Watergate.

Would the next president pardon him?

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