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Sen. Whitehouse: DOJ Should Not 'Paper Over' Bush's Torture Crimes

By Jason Leopold, The Public Record

President Barack Obama and Congress have no choice but to investigate the Bush administration’s directive to torture suspected terrorists, despite the fact that lawmakers are now dealing with more pressing issues, such as the economy and unemployment, said Sen. Sheldon Whitehouse in a speech to more than 400 students Saturday.

“We need to follow this thing into those dense weeds and shine a bright light into what was done,” Whitehouse, the Democratic senator from Rhode Island, told students at Brown University. “We can paper it over if we choose, but the blueprint is still lying there for others to do it all over again. It’s important that we not let this moment pass.”

Whitehouse’s remarks were made at two day conference attended by medical professionals sponsored by Physicians for Human Rights (PHR), a Washington, D.C., based advocacy organization that has called for an investigation into the Bush administration’s use of interrogation techniques that have been widely regarded as torture.

At the conference, PHR officials gave Whitehouse a petition signed by conference attendees calling on Congress to form a committee to probe the Bush administration use of torture against prisoners detained in the so-called “war on terror." Last year, PHR published a disturbing report, “Broken Laws, Broken Lives,” that concluded 11 former detainees held in Iraq, Afghanistan, and Guantánamo Bay, were systematically tortured. The prisoners were later released and were never charged with any crimes.

In a preface to the report, Maj. Gen. Antonio Taguba, who investigated the widespread detainee abuse at Abu Ghraib prison in Iraq, said “there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Former President George W. Bush and Vice President Dick Cheney both admitted publicly last year they had personally authorized the waterboarding of at least three suspected terrorists and allowed interrogators to use brutal methods against 33 other suspects held at Guantanamo Bay. Waterboarding is the drowning technique that has been outlawed since the Spanish Inquisition. Eric Holder, who is expected to be confirmed by the Senate as Attorney General Monday, said during his confirmation hearing earlier this month that “waterboarding is torture.”

John Bradshaw, the chief policy officer for PHR, said Saturday “accountability” is the paramount concern to his organization.

“We need to re-establish the fact that no one is above the law,” Bradshaw said.

Whitehouse, a former federal prosecutor who also served as Rhode Island’s Attorney General, said it’s crucial that the Obama administration confront Bush’s torture policies early, with an eye toward holding individuals accountable for violating federal and international laws.

“The U.S. government took part in inhumane, brutal interrogation techniques that were torture,” Whitehouse said. “The question is, what does it mean when a country as a whole heads down a road like this? It is an important story to tell to understand the way democracy works.”

It’s unknown whether the Obama’s appointees at the Justice Department will launch its own investigation into the Bush administration’s torture policies. But several Democratic leaders in both Houses of Congress have already voiced their support for such an investigation.

Whitehouse said the Justice Department should probe the matter. He pointed out that the agency has long regarded waterboarding as torture and, back in the 1980s, prosecuted a Texas sheriff in the 1980s for using waterboarding to extract confessions from suspects. Simply fixing the law around a policy does not make it legal, Whitehouse added.

A year ago, Whitehouse and Sen. Dick Durbin, D-Ill., wrote a letter to Department of Justice watchdogs requesting an investigation into the role “Justice Department officials [played] in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency... and whether those who authorized it violated the law.”

“Waterboarding has a sordid history in the annals of torture by repressive regimes, from the Spanish Inquisition to the Khmer Rouge,” said the senators’ Feb. 12, 2008, letter to Inspector General Glenn Fine and H. Marshall Jarrett, head of the DOJ’s Office of Professional Responsibility (OPR). “The United States has always repudiated waterboarding as a form of torture and prosecuted it as a war crime.

“We ask that you explore, among other things: did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? Were Justice Department officials who advised the CIA that waterboarding is lawful insulated from outside pressure to reach a particular conclusion? What role did White House and/or CIA officials play in deliberations about the lawfulness of waterboarding?”

Less than a week later, Jarrett responded. He said Whitehouse’s and Durbin’s concerns about waterboarding were already part of a pending investigation OPR had been conducting into the genesis of the Aug. 1, 2002 legal opinion widely referred to as the “torture memo.” Deputy Attorney General John Yoo, who worked in the Justice Department’s Office of Legal Counsel (OLC), wrote the legal memo. Yoo’s boss, Jay Bybee, now a judge on the 9th Circuit Court of Appeals in San Francisco, signed it. Yoo also wrote several other still secret legal opinions on interrogations methods.

“I am writing to advise you that the issues raised in your letter are included in a pending OPR investigation into the circumstances surrounding the Aug. 1, 2002 memorandum from the Department’s Office of Legal Counsel to Alberto R. Gonzales, then Counsel to the President, captioned “Standards of Conduct for Interrogation,” and related subsequent OLC memoranda,” Jarrett wrote in a Feb. 18, 2008, letter to the senators.

“Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Justice Department attorneys. Upon completion of our investigation, we will provide you with our results. Moreover, because of the significant public interest in this matter, OPR will consider releasing to Congress and the public a non-classified summary of our final report.”

According to a DOJ spokesman, the investigation is ongoing, but is likely to be completed by early March, according to OPR investigators who spoke to me on condition of anonymity.

An aide to Whitehouse, who is a member of the Senate Intelligence Committee, has not yet responded to questions as to whether the senator has received any update about the investigation. A spokesperson for Durbin did not return calls for comment.

However, last year, following Jarrett’s confirmation that his office was probing the torture memo, Durbin said, "Justice Department officials -- even those at the highest levels -- must be held accountable for their actions."

For the medical professionals who attended Saturday’s conference, the Aug. 1, 2002, torture memo Yoo drafted was particularly disturbing because he based the legal opinion on a statute written in 2000 governing health benefits.

“They got that standard, from all places, from health-care reimbursement law,” Whitehouse said. “The words happened to be useful to them, but they were taken out of context.”

Yoo's legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

Jack Goldsmith, the former head of the Department of Justice's Office of Legal Counsel, said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.

"That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Goldsmith wrote in his book, The Terror Presidency.

"The health benefits statute's use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like.... OLC’s clumsily definitional arbitrage didn't seem even in the ballpark."

Whitehouse said Yoo’s opinion, and the fact that the Bush administration relied upon it, was “beyond malpractice” and “raises the specter that these things were overlooked” just to advance policy.

Interestingly, a day before Whitehouse spoke to medical students at Brown University, Yoo spoke to students at Chapman University in Orange, Calif. The title of his discussion was: "Lincoln's Constitutionalism in Time of War: Lessons for the Current War on Terror?"

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