Mukasey gets another chance to address waterboarding

Mukasey gets another chance to address waterboarding

During his confirmation as U.S. attorney general, Michael Mukasey declined to testify as to whether waterboarding, the interrogation technique that simulates drowning, is torture. Now it falls to Mukasey’s Justice Department to determine whether destroying tapes that show CIA agents waterboarding terrorist suspects is a crime.

Mukasey’s refusal to answer questions about waterboarding during his confirmation hearings almost cost him the job. He was narrowly confirmed. He no doubt received some votes from senators who sympathized with Mukasey’s dilemma — by being pressed to define waterboarding as torture, he was being asked to tacitly accuse the administration of torture. This came at a time when President Bush himself specifically stated, “this government does not torture people.”

A new role

Mukasey is no longer a nominee. He is now the chief law enforcement officer in the land, and it is his responsibility to respond quickly and fairly to accusations that the law has been broken. He has shown himself capable of rising to the occasion.

Faced with disclosure that the CIA has destroyed video tapes of the interrogation of two al-Qaida operatives who were waterboarded, Mukasey has appointed a U.S. attorney to conduct a criminal investigation. The charge would be obstruction of justice.

The tapes were made in 2003 and were destroyed in late 2005. In June 2005, U.S. District Judge Henry H. Kennedy ordered 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 Guantanamo Bay.” Kennedy was overseeing a case in which U.S.-held terror suspects challenged their detention.

The CIA defends its destruction of the recordings by saying that the suspected terrorists, Abu Zubaydah and Abd al-Rahim al-Nashiri, were being held in secret prisons overseas, not at Guantanamo. But the tapes had also been sought by the Sept. 11 Commission and by members of congressional committees. One member of Congress wrote to the CIA specifically warning against destruction of the tape.

The prosecutor

Mukasey has named John Dunham, deputy U.S. attorney for Connecticut, to conduct the investigation. He resisted calls for naming a special prosecutor, which is a good thing. History has shown that special prosecutors, given unlimited budgets and little direction, tend to spend millions of dollars on investigations that take far too long and often result in far too little.

Dunham has a background of more than two decades of investigating organized crime and corruption in New England and has an impressive track record.

Waterboarding has been recognized as torture by the United States and by international law through former wars. The country prosecuted Axis soldiers who used the technique during World War II and U.S. soldiers who used it during the Vietnam War.

There is little doubt that in the immediate aftermath of 9/11 many, if not most, Americans would have approved of waterboarding a terrorist if it would have led to information about that plot or about other plots against the United States. But it is government’s responsibility to maintain a nation’s historic standards, not to use the fears and insecurities of the general population to treat suspects or even known terrorists in ways that violate U.S. or international law.

If laws were broken — or if evidence of laws having been broken was destroyed — it is appropriate that those responsible be held to account. And it is Makasey’s job to make that happen.