Durbin Calls for Investigation of Waterboarding

Earlier today, CIA Director Michael Hayden confirmed that the U.S. had subjected three detainees to waterboarding.

Sen. Dick Durbin (D-IL) thinks that’s worth exploring. And in a letter today, he called on Attorney General Michael Mukasey to open an investigation:

In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated…. Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law.

You can read the letter in full below.

When Sen. Sheldon Whitehouse (D-RI) pressed the attorney general on this question last week, one of the arguments Mukasey deployed for not investigating was that the notion of any possible torture was hypothetical. Well, it’s not so hypothetical any more, Durbin is saying.

Durbin also says that he will keep a hold on the administration’s nominee for deputy attorney general, Mark Filip, until Mukasey answers this letter and a number of other letters from Congress. He explains: “I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress.”

February 5, 2008
The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Mukasey:

I will object to proceeding with the nomination of Judge Mark Filip to be Deputy Attorney General until you respond to my inquiries regarding the Administration’s torture policies and practices. In light of the Justice Department’s continued non-responsiveness to Congress on the issue of torture, including your disappointing testimony on waterboarding last week, I have reluctantly concluded that placing a hold on Judge Filip’s nomination is my only recourse for eliciting timely and complete responses to important questions on torture.

Some suggested that your confirmation was an opportunity to turn a new page after Attorney General Gonzales’s troubled tenure, but your failure to take a position on waterboarding raises questions about whether your leadership will bring significant changes to the Justice Department. Your silence does tremendous damage to America’s values and image in the world and places Americans at risk of being subjected to waterboarding by enemy forces. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners.

Last week, you testified that waterboarding is not currently authorized by the Administration but you refused to comment on whether waterboarding has been authorized in the past or will be authorized in the future. In other words, your assurance that the Administration does not use waterboarding was good for the day you testified and no longer.

Today Central Intelligence Agency Director Michael Hayden testified to the Senate Select Intelligence Committee that, “Waterboarding has been used on only three detainees.” In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated. You suggested during last week’s hearing that you would not investigate these incidents because waterboarding was authorized by the Administration: “It’s a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations.” Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law. Please respond to this question: Will the Justice Department investigate the Administration’s use of waterboarding to determine whether any laws were violated?

While the United States has considered waterboarding to be a war crime for decades, last week you testified that it is unclear whether waterboarding is illegal because it is not explicitly prohibited by the Military Commissions Act and the Detainee Treatment Act. While I disagree with your analysis of the MCA and the DTA, you did not address whether waterboarding is prohibited by Common Article 3 of the Geneva Conventions, which you have acknowledged applies to all detainees in U.S. custody. Common Article 3 states that “outrages upon personal dignity, in particular humiliating and degrading treatment” are absolutely prohibited. The Judge Advocates General, the highest-ranking attorneys in each of the four military services, told me unequivocally that waterboarding and several other abusive interrogation techniques are illegal and violate Common Article 3. On August 2, 2007, I sent then Attorney General Alberto Gonzales the attached letter asking him, among other things whether it would be legal for enemy forces to subject an American citizen to these same techniques. Please respond to this letter.

During last week’s hearing, you repeatedly referenced the Justice Department’s prosecution of CIA contractor David Pasarro as evidence that the Department would not permit detainee abuses. However, you neglected to mention that, following the indictment of Mr. Passaro by the U.S. Attorney’s Office for the Eastern District of North Carolina, then Attorney General John Ashcroft assigned all pending detainee abuse cases to the U.S. Attorney’s Office for the Eastern District of Virginia on June 17, 2004. It has been over three and a half years since then and in that time there has not been a single indictment. On January 10, 2008, I sent you the attached letter requesting an update on the Justice Department’s handling of detainee abuse allegations. Please respond to this letter.

During last week’s hearing, you refused to comment on the scope of the Justice Department’s investigation of the CIA’s destruction of detainee interrogation videos. We have now learned that there may be video or audio recordings of detainees whom the CIA transferred to other countries to be interrogated. According to the Chicago Tribune, in February 2003 the CIA detained a man named Abu Omar in Italy. The CIA then took Abu Omar to Egypt and turned him over to the Egyptian government. Abu Omar claims he was tortured and that his Egyptian interrogators recorded “the sounds of my torture and my cries.” On December 12, 2007, I sent you a letter asking you to expand the Justice Department’s inquiry into the CIA’s torture tapes to cover recordings of detainees whom the CIA rendered to foreign countries. Please respond to this letter.

During last week’s hearing, we discussed the nomination of Steven Bradbury to be the head of the Justice Department’s Office of Legal Counsel. I have repeatedly urged President Bush to withdraw this nomination because of Mr. Bradbury’s involvement in authorizing some of the Administration’s most controversial policies, including torture techniques that are inconsistent with American values and law and warrantless surveillance of innocent Americans.

Prior to your confirmation, you pledged to me in writing that you would personally review all OLC opinions regarding surveillance, interrogation techniques and detention standards to determine whether each of these opinions can be provided to Congress and to determine whether the legal analyses and conclusions of each of these opinions are correct. However, at last week’s hearing, you acknowledged that you had not reviewed all of these opinions, including an opinion, reportedly authored by Mr. Bradbury, on so-called “combined effects,” which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The New York Times, then Attorney General Alberto Gonzales approved this opinion over the objections of then Deputy Attorney General James Comey, who said the Justice Department would be “ashamed” if the memo became public. As you committed prior to your confirmation, please review all OLC opinions regarding surveillance, interrogation techniques and detention standards and notify me whether each of these opinions can be provided to Congress and whether you believe the legal analyses and conclusions of each of these opinions are correct.

Mr. Bradbury is currently the Principal Deputy Assistant Attorney General of OLC. There is no Acting Assistant Attorney General, so Mr. Bradbury is the effective head of OLC. During last week’s hearing, you acknowledged that Mr. Bradbury is the “principal person” in OLC. Under the Vacancies Reform Act, after a nomination is returned to the President a second time, the nominee may continue to serve as acting head of the office for only 210 days. Mr. Bradbury was first nominated in June 2005 and his nomination was returned to the President for the second time on September 29, 2006, well over a year ago. The fact that Mr. Bradbury continues to serve as the effective head of OLC appears to be an attempt to circumvent the confirmation process in order to install a controversial nominee in a key Justice Department post. Please respond to the following question: Does Steven Bradbury’s continued service as the “principal person” in OLC violate the Vacancies Reform Act?

In sum, I will object to proceeding with the nomination of Mark Filip to be Deputy Attorney General until I receive responses to the following:

1. Will the Justice Department investigate the Administration’s use of waterboarding to determine whether any laws were violated?

2. My letter, dated August 2, 2007, asking then Attorney General Alberto Gonzales whether it would be legal for enemy forces to subject an American citizen to waterboarding and other abusive interrogation techniques.

3. My letter, dated January 10, 2008, asking you for an update on the Justice Department’s handling of detainee abuse allegations.

4. My letter, dated December 12, 2007, asking you to expand the Justice Department’s inquiry into the CIA’s torture tapes to cover recordings of detainees whom the CIA rendered to foreign countries.

5. Will you provide Congress with all OLC opinions regarding surveillance, interrogation techniques and detention standards? Do you believe the legal analyses and conclusions of each of these opinions are correct?

6. Does Steven Bradbury’s continued service as the “principal person” in OLC violate the Vacancies Reform Act?

You testified that, “The continued wait for Senate-confirmed officials creates a tentative atmosphere that is not in the interest of the Department or of the country.” That well describes the situation created by your refusal to condemn waterboarding and answer other important questions on torture. I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress. I look forward to your timely response.

Thank you for your time and consideration.

Sincerely,
Richard J. Durbin

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