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Eighth in a series

As some of you know from the comment threads, this past Saturday I attended the Association of the Bar of the City of New York’s Council on Criminal Justice retreat entitled "A Summit on the Prosecution Function." Senator Sheldon Whitehouse was both a panelist and the luncheon speaker and he graciously respond to my request for a copy of his speech, so that I might share some of the highlights with you.

The event as a whole was characterized by a bluntness and refreshing willingness to call bullshit and rip the fig leaves off of some of the more egregious behavior to come out of our system of justice in the last few years. Senator Whitehouse’s speech fit right into that, it was blunt — in the good way, it wasted no time shilly shallying politely making excuses in the name of not further damaging the Department of Justice. Nope, it cut straight to the chase, right on the first page:

While I won’t delve into the long litany of frightful stories regarding the tenure of former Attorney General Alberto Gonzales, I would like to touch on one simple point: the Attorney General simply did not seem to respect the institution that he was tasked to serve. I remember when I first took office as Attorney General of little Rhode Island, how strongly I felt the responsibility and honor of that office. I don’t think he ever felt that way. I think he felt he had seized more territory for George Bush.

He then went on to give a little report card that mentioned some reforms that AG Mukasey has instituted and to note some improvements of tone that the Senator has noticed since Muksaey took office. However, the Senator noted, despite these improvements, "much remains undone."

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At which point, the good Senator launched into the topic of the Yoo memos. He had several great pickups. For example: that definiton of torture Yoo used, you know "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure ….", that one? Do you know where it comes from? 42 USC Section 1395w-22, a Medicare reimbursement statute! I kid you not.

And how did we get to the point where the highly respected Office of Legal Counsel was using Medicare reimbursement statutes – statutes utterly irrelevant to the interrogation of suspected terrorists – to justify its legal analysis on this issue?

Making matters worse, this “legal analysis” was used to justify the legality of a certain coercive interrogation technique that regrettably has become familiar to us all, “water-boarding.”

Water-boarding has a long and sordid history in the annals of tyrant regimes, and brutal occupations. It was used by the Spanish Inquisition, by the Khmer Rouge in Cambodia, by the French in Algeria, by the Japanese in World War II, and by military dictators of Latin America.

The technique ordinarily involves strapping a captive in a reclining position, heels above head, putting a cloth over his face and pouring water over the cloth to create the feeling of suffocation and drowning. Senator John McCain (R-Ariz.), who was held captive for more than five years by the North Vietnamese, has said this of water-boarding: “It is not a complicated procedure. It is torture.”

The United States government said the same thing. Americans, on behalf of military tribunals, initiated war crimes prosecutions against Japanese soldiers who water-boarded American aviators in World War II.

In fact, the United States government itself brought a civil rights prosecution against a Texas sheriff who water-boarded prisoners. The indictment asserted that the defendants conspired to “subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions.” The sheriff and his deputies were convicted by a jury and the United States Court of Appeals for the Fifth Circuit affirmed. At sentencing, the presiding judge admonished the former sheriff that “[t]he operation down there would embarrass the dictator of a primitive country.”

It is at this point that Senator Whitehouse brought up the matter of US v. Lee which we discussed yesterday afternoon. After that, a more chilling point:

I see the torture memo as part of a disquieting pattern at the Office of Legal Counsel. As a member of the Senate Intelligence Committee, I have had the opportunity to review secret OLC opinions related to the warrantless wiretapping program. Those opinions are also deeply troubling. I was so offended by three legal theories contained in those memos, that I fought to have them declassified and brought to light. Those theories are, as declassified by the Director of National Intelligence:

1) An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it;
2) The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II; and
3) The Department of Justice is bound by the President’s legal determinations.

Point I=Emptywheel’s Pixie Dust.

Suffice it simply to say that the first proposition — that executive compliance with executive orders is optional — turns the Federal Register into a screen of falsehood, behind whose phony regulations lawless programs can operate in secret. (Remember that a regulation has the “force and effect of law.”) Contrast the second proposition — that Article II gives the President the authority to define his Article II powers — with the famous language of Marbury v. Madison, that “it is emphatically the province and duty of the Judicial Department to say what the law is.” And compare the third proposition — that the President tells the Department of Justice what the law is, and not vice versa — to the famous statement, uttered by Richard Nixon: “If the President does it, that means it is not illegal.”

As you know, I was nearly apoplectic when I heard AG Mukasey, a few mere weeks after his confirmation hearings, say that you could not say that waterboarding was legally torture, though it would seem like torture if performed upon his own person. I find myself wondering, was Mukasey telegraphing that whether or not he believed it to be torture, he could not say it was torture, because the President, pursuant to point 2 above has declared that it is not torture, and therefore, pursuant to point 3 above, no one at the Department of Justice can contradict the President?

Does it come down to something as stupid, foolish and illogical as that?

No wonder they don’t want to turn over that memo, even though it’s not classified, even though non-classified OLC opinions used to be published so they could provide guidance to everybody.

All I know is, if they ever release that remaining memo, we’re gonna need a hundred part series to dissect all the things wrong with it. Anyway, thank you Senator Whitehouse for all you have done, all you are doing and all you will do in the future to preserve and restore the rule of law in this country.

Photo of Senator Whitehouse from ActBlue

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Update: Selise is hosting the full text of Senator Whitehouse’s speech here.

[Editor's note: The mid-post photo, by takomabibelot, features a banner created and designed by Firedoglake reader BonnieT of Austin, Texas, where she operates OpposeTorture.org.]