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cross posted from docuDharma
Old School Waterboarding

On Tuesday, Bushco acknowledged publicly for the first time that waterboarding was used by the U.S. government on three "terror suspects." Testifying before Congress, CIA Director Michael Hayden claimed the three were waterboarded in 2002 and 2003.  But, he said, nobody else had been waterboarded since.  To be frank, I don't believe that for a second, but I have no evidence to the contrary.

Join me in Gitmo.

Today, according to IHT:

The United Nations' torture investigator blasted the White House for defending the use of waterboarding on Wednesday, and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.

"This is absolutely unacceptable under international human rights law," said Manfred Nowak, the U.N. special rapporteur on torture. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."

Nowak said he had received more allegations of waterboarding. But he did not have proof to back up those allegations, partly because the U.S. won't allow him to interview detainees who were previously held in the CIA's black holes and secret prisons.

"If it concerns secret places of detention, it is very difficult to prove," Nowak told The Associated Press by telephone from Vienna, Austria. He added that all allegations of waterboarding were from the "early years" of the war on terror, [somewhat?] consistent with Hayden's testimony.

Waterboarding has supposedly been outlawed in CIA interrogations since 2006.  The Pentagon has supposedly banned its employees from using it, and FBI Director Robert Mueller said the FBI does not use coercive tactics in interviewing terror suspects.  Regardless, and remarkably, the White House asserts that torture is nonetheless permissible:

But White House deputy spokesman Tony Fratto said Wednesday that CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said. Appropriate members of Congress would be notified in such a case, he said.

This statement makes me shudder.  We've been at code "orange" for years, so "imminent" is definitely in the eye of the beholder.  But more important, is the president above the law?  And who are these "appropriate" members of Congress?  Why should congress members be notified?  Is this about spreading the blame for a decision to torture and trying to immunize the president by having others agree to an illegal act?  How does getting another branch of the US government involved in human rights violations help?

Nowak isn't that concerned about waterboarding anyway.  No, he's worried about other things Bushco has done (the article doesn't even begin to list what these might be):

Nowak, an Austrian law professor who serves as one of the global body's unpaid, independent experts, said waterboarding itself was worrying, but added that the tactic "is not worse than many of the other methods they have applied."

"I'm not particularly worried about waterboarding. If it's now three cases o[r] 10, it doesn't make much of a difference," he said. "It's the whole attitude, of course, of downplaying their interrogation methods and trying to justify them still." /snip

"The evidence is so clear ... and the legal evidence is as clear," Nowak said. "I'm not willing anymore to discuss these questions with the U.S. government, when they still say that this is allowed. It's not allowed."

"It's very, very simple," he said. "It has been confirmed by so many other bodies, it's not just the United Nations special rapporteur on torture."

Why precisely is waterboarding and other kinds of torture not allowed? The U.N.'s Convention against Torture prohibits treatment resulting in long-term physical or mental damage. Also, believe it or not, the Military Commissions Act of 2006, which does not specifically address waterboarding, prohibits treatment of terror suspects that is described as "cruel, inhuman and degrading."  These acts supposedly would ban other forms of torture as well.

Which brings us to a remarkably simple question.  Bushco says they can torture.  That is a horrifying assertion.  Is there any remedy at all other than impeachment?  I think not.  When Congress passes Legislation, Bushco issues signing statements exempting himself and the rest of the executive branch.  Passing a statute forbidding waterboarding and other forms of torture is great window dressing, but "the unitary executive" says that he's beyond having to listen to mere federal statutes. That leaves only impeachment.

Is permitting, authorizing, ratifying, or acquiescing in torture "high crimes and misdemeanors"?  Of course, the Constitution does not define "high crimes and misdemeanors". Article II, Section 4 of the Constitution states:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

But it is extremely difficult to imagine that admitting to using torture and seeking through a spokesperson to argue that further torture might be authorized does not amount to a "high crime."

Impeachment needs to be back on the table.  And it needs to remain there until there is a credible assurance that the US will no longer engage in torture of any kind.  I don't think that this kind of cancer can be left alone to fester until next year.  Election or not, human rights have to be vindicated.

Originally posted to davidseth on Wed Feb 06, 2008 at 03:10 PM PST.

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