Injustice at Guantanamo: Torture Evidence and the Military Commissions Act

The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to 'shake the camera in the interrogation room' and 'cause severe internal injury,'" the report says.

The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.

Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues.

Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.

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Senate Poised to Capitulate to Cheney's Fear-Mongering

After a January 24 debate in the Senate on amending the Foreign Intelligence Surveillance Act, the Senate appears ready to capitulate once again to the Bush administration's agenda of sacrificing liberty for questionable security.

On the day before Congress was slated to take up this issue, Dick Cheney addressed the Heritage Foundation, the most influential right-wing think tank. He was given a thunderous reception, to which he quipped, "I hold an office that has only one constitutional duty - presiding over the Senate and casting tie-breaking votes." But the most powerful vice president in this nation's history was about to strong-arm Congress into doing the administrations' bidding.

Invoking the memory of September 11, 2001 twelve times, Cheney said it was "urgent" that Congress update the FISA law immediately and permanently. Notwithstanding the administration's well-known violations of FISA months before 9/11, Cheney claimed they had used "every legitimate tool at our command to protect the American people against another attack." He omitted the illegal tools the administration has admitted using, that is, Bush's so-called "Terrorist Surveillance Program" and a massive data mining program. FISA makes it a crime, punishable by up to five years in prison, for the executive to conduct a wiretap without statutory authorization. The TSP has been used to target not just the terrorists, but also critics of administration policies, particularly the war in Iraq.

Although Cheney repeatedly linked amending FISA with protecting America, there is no evidence Bush's secret spying program has made us any safer. Indeed, in 2006, the Washington Post reported that nearly all of the thousands of Americans' calls that had been intercepted revealed nothing pertinent to terrorism. About the same time, the New York Times quoted a former senior federal prosecutor, who described tips from intelligence officials involved in the surveillance. "The information was so thin and the connections were so remote, that they never led to anything, and I never heard any follow-up," he said.

In his speech to the Heritage Foundation, Cheney aimed to bully Congress into making the so-called "Protect America Act of 2007" permanent. On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that act through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law, which expires February 1, went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that turned over our telephone and Internet communications to the government.

Permanent immunity, retroactive to 9/11, for the telecommunications companies is apparently the most critical concern of the Bush administration, whose primary constituency has been the mega-corporations. Although Cheney touted these companies as patriotic partners in the administration's "war on terror," they are breaking several U.S. laws, including FISA itself, Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution. Indeed, as the Electronic Frontier Foundation put it, "the real heroes are the companies that refused to help [the administration], like Verizon Wireless" and Quest Communications.

Cheney quoted Attorney General Michael Mukasey, who described the need for these companies to defend against litigation as "an enormous burden." What he really meant is that defending the roughly 40 pending lawsuits is cutting into their enormous profits.

The House of Representatives passed a bill without immunity for the telecoms. But in a 60-36 vote, the Senate rejected a proposal from the Senate Judiciary Committee that omitted immunity and contained important limits on wiretapping powers. Republican senators John McCain and Lindsey Graham, and Democratic senators Hillary Clinton and Barack Obama were not present for the vote.

Senator Christopher Dodd has indicated his intent to filibuster, or prevent a Senate vote, on a version of the bill that includes immunity. Senate Majority Leader Harry Reid apparently now supports the filibuster. The Senate is scheduled to vote on whether to proceed to a final Senate vote on this issue on January 28. Three of the Democrats who voted against the SJC proposal must be persuaded to change their votes, and Clinton and Obama must follow suit in order to maintain the filibuster and prevent the Senate from adopting a bill that includes immunity and omits vital civil liberties safeguards.

Here are the Democrats who voted against the SJC proposal:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852

John Edwards, the only Democratic presidential candidate willing to effectively take on the corporations, should weigh in against immunity for the telecoms and challenge his competitors to do the same. This is a golden opportunity for Clinton and Obama to exercise leadership on a crucial issue. Our civil liberties and privacy rights are at stake.

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The Torture Tape Cover-up: How High Does It Go?

When the hideous photographs of torture and abuse emerged from Abu Ghraib in the spring of 2004, they created a public relations disaster for the Bush administration. The White House had painstakingly worked to capitalize on the 9/11 attacks by creating a "war on terror." Never mind the absurdity of declaring war on a tactic. Central to Bush's new "war" was the portrayal of us as the good guys and al Qaeda, the Taliban, and Saddam Hussein as the bad guys.

But the Abu Ghraib photos of naked Iraqis piled on top of one another, forced to masturbate, led around on leashes like dogs shined the light on U.S. hypocrisy.

After the Abu Ghraib revelations, the Bush administration could not tolerate more bad publicity. So in 2005, the CIA destroyed several hundred hours of videotapes depicting torturous interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, probably including water boarding. The former U.S. official involved in discussions about the tapes reported widespread concern that "something as explosive as this would probably get out," according to the Los Angeles Times. This destruction of evidence may violate several laws. And it remains to be seen how high up the chain of command the criminality goes.

Now that the videotape scandal has come to light, Bush and his men are back in damage control mode. CIA Director Michael Hayden minimized the significance of the destruction, claiming the tapes were destroyed "only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries." These claims are disingenuous.

The tapes likely portray U.S. officials engaged in torture, which violates three U.S.-ratified treaties as well as the U.S. Torture Statute and the War Crimes Act.

Bush justifies his administration's "harsh interrogation techniques" by maintaining that Zubaydah, under interrogation, fingered Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. But according to investigative journalist Ron Suskind in his 2006 book One Percent Doctrine, it was a "walk-in" who led the CIA to Mohammed in return for a $25 million reward.

Zubaydah evidently wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said Zubaydah "knew very little about real operations, or strategy." Moreover, Zubaydah was schizophrenic, according to Coleman. “This guy is insane, certifiable split personality." Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

The Supreme Court has repeatedly affirmed the government's duty to provide criminal defendants with any evidence in the government's possession that might tend to exonerate the defendant or impeach the prosecutor's case. Zacarias Moussaoui tried to subpoena Zubaydah to testify at his trial. On May 9, 2003, Assistant U.S. Attorneys David Novak and David Raskin lied to U.S. District Court Judge Leonie Brinkema, who presided over Moussaoui's trial. When the judge asked "whether the interrogations are being recorded in any format", the U.S. Attorneys said no, evidently relying on information from the CIA. This is obstruction of justice.

When Zubaydah and al-Nashiri go before the military commissions, they will undoubtedly raise their torture as a defense to whatever crimes they face. Yet the evidence of that torture has been destroyed by the government.

There was no way of knowing whether these tapes could have intelligence value in the future. Indeed, the government defied the 2003 and 2004 demands of the 9/11 Commission by failing to turn over the videotaped interrogations. Now the CIA is parsing words by claiming the commission never directly asked for videotapes. "We asked for every single thing they had," commission co-chairman Thomas Kean said. "And then my vice chairman, Lee Hamilton, looked the director of the CIA in the face, and said, 'Look, even if we haven't asked for something, if it's pertinent to our investigation, make it available to us.'" Hamilton said the CIA "clearly obstructed" the commission's investigation.

At the same time the 9/11 Commission was denied the tapes, the ACLU filed Freedom of Information Act requests seeking records of the treatment of all detainees held in U.S. custody abroad since 9/11. When the government refused to comply with the FOIA requests, the ACLU sued in federal court in New York. On September 15, 2004, U.S. District Court Judge Alvin Hellerstein ordered the CIA and other government agencies to "produce or identify" all requested documents within one month. They are still not forthcoming. The ACLU has filed a motion to hold the CIA in contempt of court for refusing to comply with Judge Hellerstein's order.

When the destruction of the tapes became public, both the House and Senate intelligence committees opened investigations, and subpoenaed witnesses and documents to shed light on the matter. Attorney General Michael Mukasey refused to cooperate and tried to put the kabosh on the congressional probes, asking them to wait until he had finished his own internal investigation. But after criticism in the media, the CIA relented and agreed to produce documents and the testimony of acting CIA general counsel John Rizzo.

The decision to destroy the tapes was allegedly made by Jose A. Rodriguez Jr., who was chief of the Directorate of Operations, the CIA's clandestine service. Although the House intelligence committee has subpoenaed Rodriguez, there is no indication his bosses will allow him to testify.

The Sunday Times (London) reported that Rodriguez may seek immunity from prosecution in exchange for testifying before the House intelligence committee. Rodriguez's testimony could be explosive.

At least four top White House lawyers participated in discussions with the CIA between 2003 and 2005 about whether to destroy the videotapes. They included Alberto Gonzales, David Addington (Cheney's former counsel, now his chief of staff), Harriet Miers, and John Bellinger (former senior attorney at the National Security Council). The New York Times quoted a former senior intelligence official as saying there was "vigorous sentiment" among some high White House officials to destroy the tapes.

Two former CIA officials, Vincent Cannistrano and Larry Johnson, think it highly unlikely Rodriguez made the decision to destroy the tapes on his own. George W. Bush "has no recollection" of hearing about the existence or destruction of the tapes before Hayden briefed him on December 13. Yet given Bush's keen interest in Zubaydah's interrogation, it seems more likely the President was involved with the decision to destroy the tapes.

During his Senate confirmation hearing, Michael Mukasey refused to opine about whether water boarding constitutes torture. Mukasey knew the Bush administration had admitted water boarding prisoners, and that torture is a war crime under the U.S. War Crimes Act. Mukasey was shielding his future bosses from criminal liability as war criminals. Now the Department of Justice, under Mukasey, is investigating the destruction of the tapes.

Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)

When he was a federal judge, Michael Mukasey issued the material witness warrant for Jose Padilla. The warrant was based partly on information from Abu Zubaydah. It is not clear whether Mukasey knew Zubaydah's statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest. He has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent counsel statute.

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Michael Mukasey: Another Loyal Bushie

The Michael Mukasey Senate Judiciary Committee confirmation hearing has demonstrated that Mukasey cannot be relied upon to function independently as U.S. Attorney General. Nevertheless, Senators on the Senate Judiciary Committee seem so thrilled that Mukasey is not Alberto Gonzales that they're willing to vote for him even though he's another loyal Bushie. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, backed down on his promise to hold up the confirmation hearing until the administration turned over material his committee had requested regarding several investigations. Leahy said of Mukasey after the hearing, "He's at least answered the questions, which is better than his predecessor. He's going to be different than Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale."

But saying that Mukasey compares favorably to Alberto Gonzales is faint praise for the nominee. The former Attorney General resigned during a firestorm of criticism about his U.S. Attorney purges, and his repeated claims of memory loss when he testified before the Senate Judiciary Committee.

Mukasey doesn't seem to have a memory problem; he relied on a different excuse for dodging the Senators' hard questions: he hasn't been "read in on" the details of Bush policies, such as interrogation techniques, or the "Terrorist Surveillance Program." Mukasey claims he doesn’t know what water boarding is, so he can’t say if it constitutes torture. Say what? Mukasey’s claimed ignorance of water boarding is about as credible as his predecessor’s convenient claims of amnesia. Rear Adm. John Hutson (USN Ret.) testified at the confirmation hearing, "Other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish inquisition. It has been repudiated for centuries."

Mukasey made the incredible assertions that "we do not torture" and "I don't think people are mistreated" at Guantánamo. The main problem he sees with Guantánamo is that "nobody owns it," that is, there is jurisdictional overlap between the Justice and Defense Departments. Mukasey callously told Sen. Dick Durbin before the hearings that Guantánamo was used as a "fright wig," and after all, detainees receive "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans."

The rest of us haven't been “read in on” the classified details either. But we know that torture and inhuman treatment is Bush policy in spite of the fact it's illegal. The 2005 Department of Justice memos recently leaked to the New York Times say the government is engaging in water boarding, head slapping and exposing people to frigid temperatures, the International Committee of the Red Cross said the treatment of prisoners in U.S. custody is tantamount to torture, and the U.N. Human Rights Commission concluded that force feeding Guantánamo prisoners amounts to torture. We also know that Bush spied on Americans without warrants in spite of the Foreign Intelligence Surveillance Act (FISA) because he and Gonzales admitted it. And we know what water boarding is.

Some of Mukasey’s testimony before the Senate Judiciary Committee should have raised red flags in the minds of Democratic Senators. Mukasey refused to reject the notion that the President can constitutionally violate FISA. He misread the Supreme Court's recent decision in Hamdan v. Rumsfeld, which clearly rejected Bush's claim that Common Article 3 of the Geneva Conventions doesn't protect al-Qaeda prisoners. Common Article 3 prohibits torture and cruel or inhuman treatment of all prisoners. In fact, the Hamdan Court referred to possible liability under the U.S. War Crimes Act for those who violate Common Article 3. And when asked about contempt charges against witnesses who refuse to respond to congressional subpoenas, Mukasey said he would refuse to follow the statute that requires a U.S. attorney to refer contempt citations to a grand jury.

Nonetheless, Mukasey appears to be a shoo-in, with the Senate proceedings resembling a charade. One month before Mukasey was tapped by Bush for AG, the former federal judge penned an op-ed in the Wall Street Journal complaining about too much due process in terrorism prosecutions and advocating special courts where the Constitution wouldn't get in the way of catching the bad guys.

Mukasey's excessive zeal for Bush's war on terror was evident right after 9/11. In an October 2, 2001 hearing in his court, then-Judge Mukasey dismissed attorney Randall Hamud's claim that his client, 21-year-old Jordanian Osama Awadallah, had been physically beaten while in custody and had the marks to prove it. Mukasey retorted, "As far as the claim he was beaten, I will tell you he looks fine to me." The judge then refused to direct that Awadallah be examined by a doctor, and ordered that he be held indefinitely. The marks were under Awadallah's clothing. He was one of the more than 1,000 men of Arab descent rounded up after 9/11, and later exonerated. Many suffered similar abuse while in U.S. custody. Ronald Kuby was a defense attorney in the 1995 Omar Abdel Rahman case, over which Mukasey presided. Mukasey "was violating the rights of Arabs before it was popular," Kuby said. "It was very much like trying a case with two prosecutors, one of whom was wearing a black robe."

After librarians complained about the USA Patriot Act's provision that required them to tell the government what books we read, Mukasey mocked them in a Wall Street Journal op-ed. He described civil liberties concerns as "recreational hysteria."

Although former Judge Mukasey ruled Jose Padilla had the right to consult with counsel, he held that the President has the power to detain U.S. citizens caught on U.S. soil without charging them with a crime. When Sen. Dianne Feinstein questioned him, Mukasey incorrectly cited Hamdi v. Rumsfeld to support his position. Hamdi, unlike Padilla, was captured on the battlefield in Afghanistan, and the high court held that even Hamdi was entitled to some basic due process. In response to Feinstein's question about whether Congress has the right to set boundaries on military action under Article I of the Constitution, Mukasey demurred, arguing his "learning curve" was "steep."

Mukasey ducked the question of whether he would advise the President to allow unlawful enemy combatants habeas corpus rights at Guantánamo Bay. "I would not advise the President to grant rights beyond those that they already have," he told Sen. Lindsey Graham. In spite of the Military Commissions Act, which purports to deny these people statutory habeas rights, the Supreme Court will likely decide this term that they still have the constitutional right to habeas corpus.

At the committee hearing on Wednesday, Mukasey was introduced by his dear friend and law school buddy Joe Lieberman. No one is fanning the flames of war against Iran more than Lieberman. Bush/Cheney likely see Mukasey as a reliable ally who will help "legitimize" their impending illegal attack on Iran.

When Bush nominated Mukasey for attorney general, he declared Mukasey would "ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens." Mukasey, who refused to call water boarding torture, will likely support that "tool" in the war on terror. Mukasey told senators in advance of his hearings that he supports enhanced interrogation techniques, according to Newsweek's Michael Isikoff.

Michael Mukasey cannot be counted on to independently investigate the crimes of the White House. Elizabeth Holtzman, a former congresswoman who served on the House Judiciary Committee during the Nixon impeachment, advocated in a recent op-ed in the Progressive that the Senate should confirm Muksey only if he pledges to appoint a special prosecutor to investigate the Bush administration. That's what the Democratically-controlled Congress did in 1973 after Nixon nominated Elliot Richardson for attorney general. Richardson agreed, he was confirmed, and then appointed Archibald Cox as special prosecutor. Cox's investigations and summary dismissal resulted in the issuance of articles of impeachment against Nixon in the House Judiciary Committee followed by Nixon's resignation. It would be wonderful to have a Congress that once again stood up to the President when he breaks the law.

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Unrepentant, Bush Denies Torture

The April 2004 publication of grotesque photographs of naked Iraqis piled on top of each other, forced to masturbate, and led around on leashes like dogs, sent shock waves around the world. George W. Bush declared, “I shared a deep disgust that those prisoners were treated the way they were treated.” Yet less than a year later, his Justice Department issued a secret opinion endorsing the harshest interrogation techniques the CIA has ever used, according to an October 4, 2007 report in the New York Times. These include head slapping, frigid temperatures, and water boarding, in which the subject is made to feel he is drowning. Water boarding is widely considered a torture technique. Once again, Bush is compelled to issue a denial. He insists, “This government does not torture people."

This was not the first time the Bush administration had officially endorsed torture, however. John Yoo, writing for the Justice Department’s Office of Legal Counsel, penned an August 2002 memorandum that rewrote the legal definition of torture to require the equivalent of organ failure. This memo violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified, and therefore part of U.S. law under the Supremacy Clause of the Constitution.

In December 2002, former Secretary of Defense Donald Rumsfeld approved interrogation methods that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, and water boarding. U.S. Navy General Counsel Alberto Mora told William Haynes, the Pentagon’s general counsel, that Rumsfeld’s “authorized interrogation techniques could rise to the level of torture.” As a result, Rumsfeld rescinded some methods but reserved the right to approve others, including water boarding, on a case-by-case basis.

When Bush maintained earlier this week that his government doesn’t torture prisoners, he stressed the need for interrogation to “protect the American people.” Notwithstanding the myth perpetuated by shows like “24,” however, torture doesn’t work. Experts agree that people who are tortured will say anything to make the torture stop.

One of the first victims of the Bush administration’s 2002 torture policy was Abu Zubaydah, whom they called “chief of operations” for al Qaeda and bin Laden’s “number three man.” He was repeatedly tortured at the secret CIA “black sites.” They water boarded him, withheld his medication, threatened him with impending death, and bombarded him with continuous deafening noise and harsh lights.

But Zubaydah wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said of Zubaydah, "He knew very little about real operations, or strategy … He was expendable, you know, the greeter . . . Joe Louis in the lobby of Caeser's Palace, shaking hands." Moreover, Zubaydah was schizophrenic; according to Coleman, “This guy is insane, certifiable split personality.” Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

Likewise, Khalid Sheikh Mohammed, considered the mastermind of the September 11 attacks, was tortured so severely – including by water boarding – that the information he provided is virtually worthless. A potentially rich source of intelligence was lost as a result of the torture.

Bush’s insistence that his administration doesn't torture rings hollow. He lied about weapons of mass destruction and a Saddam-al Qaeda connection in Iraq. He lied when he assured us his officials would not wiretap without warrants. As evidence of secret memos detailing harsh interrogation policies continues to emerge, we can't believe Bush's denials about torture.

Democrats in Congress have demanded they be allowed to see the memos, but Bush said the interrogation methods have been "fully disclosed to appropriate members of Congress." Senator John D. Rockefeller IV was unmoved. "I'm tired of these games," he said. "They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program."

It is incumbent upon the Senate Judiciary Committee to vigorously interrogate Michael Mukasey during his attorney general confirmation hearing. As AG, Mukasey would oversee the department that writes interrogation policy. Mukasey should know the Convention Against Torture prohibits torture in all circumstances, even in times of war.

Torture is a war crime. Those who commit or order torture can be convicted under the U.S. War Crimes Statute. Techniques that don't rise to the level of torture but constitute cruel, inhuman or degrading treatment or punishment also violate U.S. law. Congress should provide for the appointment of a special independent counsel to fully investigate and prosecute all who are complicit in the torture and mistreatment of prisoners in U.S. custody.

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