C&L: Sheldon Whitehouse: Iraq Justification Raises the Prospect of Criminal Prosecution for Torture
Heather Friday May 15, 2009 5:30amSheldon Whitehouse while being asked about the torture bombshell that Lawrence Wilkerson dropped on Dick Cheney says that if what Wilkerson asserts is true and the Bush administration went outside of the OLC's legal justification for the torture, it raises the prospect for criminal prosecutions.
Sanchez: We're hearing from ex-Powell Chief of Staff Lawrence Wilkerson and he's making the argument that he believes that what the Bush administration was doing with enhanced interrogations was trying to make a case for the invasion of Iraq and trying to justify what happened in Iraq. So you believe that is actually what enhanced interrogation, "so called" torture was being used for?
Whitehouse: I've heard that to be true. There is some further evidence of that in Chairman Levin's Armed Services Committee report. There is not a great deal of evidence that came out in our hearing one way or the other about that. The one thing I will say about that is that if that is true, then it takes the application of these techniques out of the protected scope of the Office of Legal Counsel opinion.
Sanchez: And it makes this them political. It's not about we were scared, we wanted to defend the country any more. Now it's about we needed to have some political justification or something we wanted to do. (crosstalk)
Whitehouse: And that raises the prospect of there being a criminal prosecution that could justifiably emerge from these facts if that were in fact the motivation.
Sanchez: One quick thing before I let you go...Am I hearing you say that if there was evidence, enough evidence on this particular subject, that it was being used to try and get or boost the reason for the war in Iraq, that you would be more likely to push for criminal prosecution?
Whitehouse: Torture is criminal. If it's not justified by the OLC opinion. If there aren't any defenses that that raises because you've gone outside of it then it exposes people to that. That's a decision that should be made by the Attorney General, by an appropriate prosecutor or official...
Sanchez: But will you say on the record that if you find evidence of that you're more apt to want to push for a prosecution? Yes or no.
Whitehouse: One is more apt to do that--correct.
- Josh Marshall: Bubbling
Sen. Whitehouse (D-RI) was just interviewed on MSNBC and he talked about the new reports that Vice President Cheney tried to get the Iraq WMD investigators -- after the invasion -- to waterboard an Iraqi intelligence official to try to pump him for information about Saddam's alleged alliance with al Qaida. Whitehouse noted that this would dramatically change the legal terms of the question since even the notorious OLC memos allow practices like waterboarding to avoid imminent threats to the US. But waterboarding this Iraqi guy about Saddam's relationship with al Qaida -- after the invasion -- would have been to get political information, proof of the purported but then largely discredited rationale for the war. (Also worth noting is that an Iraqi intelligence official captured during the invasion would, I think, very clearly be an old fashioned POW.)
More and more the timeline is raising the question of why, if the torture was to prevent terrorist attacks, it seemed to happen mainly during the period when we were looking for what was essentially political information to justify the invasion of Iraq.
Here are Sen. Whitehouse's (D-RI) appearances on the topic this afternoon on CNN and MSNBC.
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Joe Sudbay:
How idiotic are the people in the traditional media? Speaker Pelosi said quite firmly that the CIA misled her about the Bush administration's torture policy back in 2002. She was adamant. And, yes, it was torture.Josh Marshall: Neocons Gone Wild
Yet, traditional media types can't grasp that concept. Surely, they're breathlessly intimating, Pelosi must be wrong. Do they not remember what really happened back in 2002-2003? I made the mistake of watching the start of the TODAY Show this morning. Matt Lauer and the ever painful Kelly O'Donnell seem shocked, shocked that Pelosi would say someone in the Bush government would have lied back in 2002. For Christ sakes, George Bush, Dick Cheney and their entire administration were flat out lying to the American people back then about terrorism and Iraq. They misled us into a war -- abetted by the traditional media.
Do these idiots in the media not remember that? The likes of Lauer, O'Donnell and their colleague covering the White House, David Gregory, were regurgitating the Bush team's lies -- and echoing the drumbeat for war. It was appalling -- beyond appalling -- that no one challenged the lies back then. Now, they can't grasp that someone in the government was lying about these issues. Idiots.
As we're getting a clearer picture of how much of the torture push was aimed at finding someone to 'confess' to knowledge of an alliance between Iraq and al Qaida, I wanted to flag people's attention back to an article Jonathan Landay wrote back on April 21st which went into some detail on the subject -- both from his own sources and from the recently released Senate Armed Services Committee report on detainee abuse.
As one "former senior intelligence official" told Landay, there were two main reasons behind the use of harsh interrogation methods and torture ...
"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly -- Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 -- according to a newly released Justice Department document.
"There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued.
"Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."
Senior administration officials, however, "blew that off and kept insisting that we'd overlooked something, that the interrogators weren't pushing hard enough, that there had to be something more we could do to get that information," he said.
We also know from Robert Windrem's report at The Daily Beast that Cheney apparently pressed Iraq Survey Group chief Charles Duelfer to use water torture on what was apparently a bona fide Iraqi POW -- a senior intelligence official -- in order to get him to confess to connections with al Qaida. Duelfer refused.
Looking at these revelations together put my mind back to those days in Washington in 2002 and 2003 when there was a feverish cottage industry of neocon journalists and think tankers endlessly vying with each other to match each other's increasingly outlandish tales of Saddam-bin Laden conspiracies. What this emigre or exile had claimed, what the CIA knew but wouldn't reveal. It went on and on. And, of course, these folks collectively had a metaphorical IV directly into Vice President Cheney's brain -- and, well, vice versa.
In any case, for all the puffed up chests these folks always had a certain air of needing confirmation or perhaps better to say validation about them. The desire was intense. And now, seeing it all together, you can just see Cheney -- who was really one of these guys -- having a few of these 'high value' guys in his grasp and just not stopping the waterboarding until they admitted it was true.
AEI and Lord of the Flies all playing out in some dungeon somewhere. And every time the waterboarders came back to say it was a dry hole, they've got Cheney -- or I guess maybe Addington -- ordering them to go back for more.
Lawrence Wilkerson's comments yesterday about the Bush administration torturing detainees in the hopes of establishing a Saddam/al Qaeda link were obviously important. But there was something else Wilkerson said that bears repeating.My investigations have revealed to me -- vividly and clearly -- that once the Abu Ghraib photographs were made public in the Spring of 2004, the CIA, its contractors, and everyone else involved in administering "the Cheney methods of interrogation", simply shut down. Nada. Nothing. No torture or harsh techniques were employed by any U.S. interrogator. Period. People were too frightened by what might happen to them if they continued.
What I am saying is that no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama's having shut down the "Cheney interrogation methods" will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?
That's a good point. All of the recent revelations about detainee abuse, torture memos, administration directives, etc., point to incidents from Bush's first term. Wilkerson's contention that the explosive Abu Ghraib scandal changed the nature of the process seems entirely plausible.
If so, the Bush/Cheney torture policies weren't dropped four months ago, when President Obama took office, but rather, five years ago. If the tactics were absolutely necessary for our national security, and to protect Americans from deadly terrorist attacks, this wouldn't have happened.
Benen: WHY OBAMA MUST TRULY HATE BUSH....
Andrew Sullivan had an item this week, arguing that President Obama might have some strategy in mind that will, eventually, get the truth out about the Bush administration's torture policies. Yesterday, Sullivan posted a reader response that did a nice job summarizing what the White House is likely thinking.
Imagine what such prosecutions would entail: years of courtroom drama, depositions, lawsuits and counter-suits; the long parade of powerful and high ranking ex- and current members of government, including a goodly number of Democrats, being called on the carpet and having to testify against one another; the enormous rancor and bitterness. This would be Watergate on steroids. And imagine the shot in the arm this would give the zombified Limbaugh Right.
The prosecutions you are asking for would simply swallow the Obama presidency whole. It is the kind of energy draining, oxygen consuming drama that is the nightmare of every president. It would come to define his presidency in the same way the Hostage Crisis defined Carter's and there is zero chance he will opt for this.
President Obama is making a realistic, cold, clear-eyed cost-benefit analysis. This is the choice: Does he fix the economy, fix healthcare, get a handle on the two wars he's dealing with, or does he prosecute Bush era war crimes? He has chosen his agenda and is asking us to choose that to.
Right. Obama, I suspect, just doesn't want to deal with any of this anymore; he has too much else to do. Investigating alleged Bush/Cheney crimes, prosecuting alleged Bush/Cheney crimes, releasing photographs documenting alleged Bush/Cheney crimes ... the president apparently doesn't see the utility in any of this.
Indeed, I've been trying to think about this from Obama's perspective. Bush left him with a generational economic crisis, an abysmal job market, a budget mess, a war in Iraq, a deteriorating war in Afghanistan, an nuclear-armed and unstable Pakistan, a nuclear-armed and nutty North Korea, a warming planet, a collapsing U.S. auto industry, an ineffective health care system, a massive debt, an absurd national energy framework, and a nation that has lost much of its global prestige.
Ready to dive in and start getting the nation back on track, the president is then told, "Wait, we have to deal with the consequences of the previous administration's alleged war crimes, too."
I can only assume the president wakes up every morning thinking, "God, I just hate that guy."
He's probably looking at all of this in cold, calculating terms, and has decided none of torture-related allegations and/or evidence advance the nation's interests. Except, there's a nagging problem -- that darn rule of law.
While I can easily understand the president's calculation, I still think some of Obama's recent calls are mistaken, not because they're inexplicable, but because the expedience just isn't a good enough excuse.
It's a real shame Bush and Cheney screwed up so spectacularly, and ignored the law so systematically, that it's interfering with Obama's desire to govern. It really is. If I were in the president's shoes, I might feel the same temptations. But he signed up for this gig, vowing to rebuild the nation. As much as he'd like to get beyond the recent past, nothing of any value is ever built on a corrupted foundation.
Benen: KRAUTHAMMER'S BEST EXAMPLE....
The Washington Post's Charles Krauthammer received some well-deserved flack after his pro-torture column a couple of weeks ago. He argued at the time, that "the ticking time bomb" is a reasonable excuse for torture. "An innocent's life is at stake," Krauthammer said. "The bad guy you have captured possesses information that could save this life. He refuses to divulge. In such a case, the choice is easy."
The general response to this is that the proverbial ticking time bomb is a fantasy scenario, best left to action shows on television. Today, the conservative columnist responds by pointing to a specific example, that actually happened, to help bolster his point.
On Oct. 9, 1994, Israeli Cpl. Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car. He was interrogated with methods so brutal that they violated Israel's existing 1987 interrogation guidelines, which themselves were revoked in 1999 by the Israeli Supreme Court as unconscionably harsh. The Israeli prime minister who ordered this enhanced interrogation (as we now say) explained without apology: "If we'd been so careful to follow the [1987] Landau Commission [guidelines], we would never have found out where Waxman was being held."
Who was that prime minister? Yitzhak Rabin, Nobel Peace laureate. The fact that Waxman died in the rescue raid compounds the tragedy but changes nothing of Rabin's moral calculus.
Krauthammer had weeks to come up with a real-world scenario to help prove his case for justifiable torture, and this was the best he could do.
There was no ticking time bomb in this anecdote. There was a soldier who'd been captured by his enemy. Obviously the government wanted to save the man's life and mount a rescue operation, but officials brutally tortured an accomplice and the soldier was nevertheless killed.
It's clearly a tragic outcome to an awful situation, but does the anecdote help justify the U.S. government committing acts of torture? I don't think so.
What Krauthammer has offered is a story in which bad guys kidnapped a good guy. If that's grounds for torture, practically every kidnapping would compel U.S. officials -- not just the CIA and the military, but state and local law enforcement, too -- to torture suspected accomplices with some regularity. The "rare exception" would quickly become routine.
What's more, what does it say about the strength of Krauthammer's case that the single most compelling anecdote he can find to defend torture is a kidnapping in a foreign country 15 years ago in which the hostage was killed?
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