Waterboarding the White House

Echoes of Watergate in the twilight of the Bush presidency

In 2002, the year of the now-notorious CIA torture videos filmed in the agency's secret prisons, high-level Justice Department lawyers told Alberto Gonzales, then the counsel to the president, and Bush himself that the commander in chief could ignore the Geneva Conventions' prohibitions on the torture of prisoners.

Secretary of State Colin Powell, in an angry letter to Gonzales, immediately warned that this radical reversal of longtime U.S. policy would have a "high cost . . . in negative international reaction . . . and make us more vulnerable to domestic and international legal challenge. . . ."

Although ignored by the president, Powell's predictions were spot-on. However, in this country, no CIA torturers—let alone their superiors, White House lawyers, administration officials, or the president himself—have been held to account for their involvement in these war crimes under our own laws and international treaties.

Last year, Italy issued arrest warrants for CIA agents who had kidnapped an Italian citizen and "rendered" him to be tortured in another country. (Though these CIA agents won't be extradited to Italy by the Bush administration, they'd better not plan to vacation there for a long time.) Also last year, Donald Rumsfeld, in forced retirement, had to avoid a NATO conference in Germany and then hurriedly left Paris to avoid being charged, in both countries, with violating international war-crimes statutes.

But in the continuing furor here over the no-longer-secret 2005 destruction of these videotapes of waterboarding and torture, there is evidence of apprehension in the Oval Office and among other administration officials about the increasing pressure for an independent prosecutor to be appointed. Such a prosecutor would be empowered to find out whether there was administration involvement in this clear obstruction of justice by the CIA, since those tapes had been requested by federal judges and the 9/11 Commission.

It has already been disclosed by The New York Times on December 19 that between 2003 and 2005 (when the incriminating videos vanished), at least four leading White House lawyers were debating whether that incendiary evidence should be whacked out of existence.

The president claims that no one said anything to him about those dramatic waterboarding sequences until just recently, when CIA director Michael Hayden broke the news to him.

The four White House lawyers debating a coverup of CIA war crimes were Alberto Gonzales; John Bellinger, then with the National Security Council; David Addington, the fearsome former counsel to Dick Cheney and now his chief of staff; and Harriet Miers, one of Bush's closest daily advisers, later ludicrously and unsuccessfully nominated by him to the Supreme Court.

Is it conceivable that none of these august administration officials, while deliberating the fate of the tapes, ever mentioned a word about them to the boss?

Tom Raum of the Associated Press noted on December 19 that "the very vision of White House officials sitting around a table talking about such an inflammatory course of action evokes echoes of Nixon and Watergate." Raum also quoted New York University public- policy professor Paul C. Light: "It brings up the schooling that the Nixon administration received regarding the destruction of the secret White House tapes." That "schooling" eventually flunked Richard Nixon out of office. That won't happen with the present incumbent, but it still could lead to a special prosecutor subpoenaing the commander in chief to ask him what he knew regarding this smoldering case of obstruction of justice on his watch.

After all, while he was still in office, President Bill Clinton appeared before a grand jury to answer questions on what his Republican opponents alleged were very serious questions of potential perjury and obstruction of justice—and the destruction of these torture videotapes is a good deal more important than the president having oral sex. Says Marc Rotenberg, executive director of the Electronic Privacy Information Center: "There is a presumption against the destruction of records involving potential or alleged government misconduct. But when there is a judicial preservation order in place, the destruction of such records raises far-reaching concerns."

If President Bush occasionally reads the newspapers, he must know by now that there was indeed a June 2005 preservation order by U.S. District Judge Henry Kennedy in Washington, which instructed the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment and abuse of detainees now at the United States Naval Base at Guantánamo Bay."

But did that order cover the CIA's secret prisons? We can't realistically expect Attorney General Michael Mukasey to be a credible judge of that, since his Justice Department was deeply involved—through Alberto Gonzales and other administration lawyers—in discussions about whether to destroy these videos in the first place. (The videos went missing soon after Judge Kennedy's order to preserve evidence was issued.)

Also, Bush loyalist Mukasey has already shown that he supports the president's assertion of supreme powers in matters of national security. For example, the attorney general told an American Bar Association panel last month that the telecommunications companies who cooperated with Bush's warrantless spying program on our phone calls should be protected from prosecution and even civil lawsuits!

Ordinarily, it's the attorney general who appoints a special prosecutor. At present, Mukasey has selected only a career prosecutor at the Justice Department to conduct an investigation into this case—one who will not have the independence, coupled with the expansive authority of the attorney general, that a true special prosecutor would have.

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