The Progress Report

November 6, 2007

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Jeremy Richmond, and Ali Frick

JUSTICE

Tortured Logic

Today, the Senate Judiciary Committee will vote on the nomination of Judge Michael Mukasey to become Attorney General. When President Bush nominated Mukasey in September, he touted him as a potential "consensus nominee" who could avoid a divisive confirmation fight. Following the first day of his confirmation hearing, where he denounced torture as "antithetical to what" America "stands for," Mukasey appeared to be sailing towards confirmation. But that changed the following day when Mukasey refused to classify the practice of waterboarding -- an interrogation method in which a suspect has water poured over his face to simulate drowning -- as unconstitutional, repeatedly claiming it depended on how one defines "torture." Mukasey's "massive hedge," as Sen. Sheldon Whitehouse (D-RI) called it, immediately put his nomination in jeopardy. Committee Chairman Patrick Leahy (D-VT) then requested that the nominee clarify his views in written answers to the committee. When Mukasey responded by offering "unconvincing and contradictory" answers on the legality of waterboarding, his support from Democrats on thecommittee dissipated. Though Leahy eventually announced that he would oppose the nominee, Sens. Charles Schumer (D-NY) and Dianne Feinstein (D-CA) said they would vote in his favor, all but guaranteeing he would make it out of committee. With Feinstein and Schumer's support in the Judiciary Committee, Mukasey is expected to eventually be approved by the Senate. But his confirmation fight brings the debate over waterboarding into sharp focus by highlighting the right wing's embrace of an interrogation technique that is widely regarded to be illegal torture.

THE EXPERTS AGREE: In written testimony to the Senate Select Committee on Intelligence, Allen Keller, M.D., director of the Bellevue Hospital Center/New York University Program for Survivors of Torture, said that "to think that abusive methods" such as waterboarding "are harmless psychological ploys is contradictory to well established medical knowledge and clinical experience." Dr. Keller added that "there is a real risk of death" involved in the technique and that the "long term effects include panic attacks, depression and PTSD," noting one recipient "who would panic and gasp for breath whenever it rained even years after his abuse." In 2004, then-acting assistant attorney general Daniel Levin was so concerned about the administration's use of waterboarding that he went to a military base near Washington and underwent the procedure himself. After experiencing it, Levin concluded that "waterboarding could be illegal torture." For his efforts, "Levin was forced out of the Justice Department when Alberto Gonzales became Attorney General." In light of Mukasey's refusal to call waterboarding torture, experts have spoken out against the procedure. In a letter to Leahy last Friday, four retired Judge Advocates General (JAGs) -- the judicial arm of the U.S. military -- unequivocally called waterboarding torture. In a memo yesterday, 24 former intelligence officials demanded a hold on Mukasey's nomination until he further clarifies his views. Four retired generals also wrote to Leahy, calling waterboarding "illegal torture in all circumstances."

THE RIGHT-WING EMBRACE: With the Bush administration facing "a potential legal quagmire" if Mukasey were to declare waterboarding torture, prominent voices on the right are twisting morality and reason to defend the technique. In a National Review Online column titled "Waterboading Has Its Benefits," Hoover Institution media fellow Deroy Murdock writes that "waterboarding is something of which every American should be proud." His National Review colleague, Rich Lowry, claims that "common sense suggests that the practice belongs in a murky space short of unambiguous torture" because the Senate has not "put itself clearly on record forbidding waterboarding." As the Atlantic's Andrew Sullivan notes, Lowry's position is tantamount to saying "that if the Congress does not explicitly forbid specific torture techniques as illegal, then they're legal." Defending the practice, Commentary editor John Podhoretz has redefined torture away from the actual legal definition, claiming that it is "universally understood" to only be "the infliction of physical injury through the application of physical force." Center for American Progress Senior Fellow Mark Agrast writes that the embrace of waterboarding has increased "the risk that our own men and women will be subjected to such treatment in the event of their capture." Secretary of State Condoleezza Rice's legal adviser, John Bellinger, appeared willing to concede this risk. Bellinger refused to call waterboarding torture, even if it were used "on an American national by a foreign intelligence service."

GIULIANI BLURS THE LINES: Asked last month about Mukasey's refusal to call waterboarding torture, former New York City Mayor Rudy Giuliani told an audience in Iowa that he was "not sure" if the technique was torture because "it depends on how it's done. It depends on the circumstances. It depends on who does it." After claiming that "liberal newspapers have exaggerated" the use of techniques such as waterboarding, Giuliani joked about another questionable interrogation technique, sleep deprivation, saying "on that theory, I'm getting tortured running for president of the United States." Giuliani applied the same lighthearted dismissal of torture concerns to waterboarding last week when he said, "[I]intensive questioning works. If I didn't use intensive questioning, there would be a lot of mafia guys running around New York right now and crime would be a lot higher in New York than it is." Giuliani never explained what exact "intensive questioning" techniques he used and how they relate to the specific technique of waterboarding. The Washington Post's Richard Cohen writes today, "Is he serious? Did he waterboard the Gambinos?" Giuliani's comparison of waterboarding to police interrogation serves only to blur the lines and normalize torture, which has already been much too normalized by the Bush administration.

IRAQ -- DESPITE REDUCED VIOLENCE, INCREASED NUMBER OF AMERICANS DISAPPROVE OF WAR: Looking for signs of progress in Iraq, the Bush administration has been quick to jump on reports of reduced violence in Iraq. The "violence is thankfully coming down," White House spokesperson Dana Perino said last month. Violence is "down significantly from last year," declared President Bush. But a new ABC News poll reveals that the Bush administration's spin on success in Iraq is failing to convince the American public. "Fifty-nine percent still don't think the United States is making significant progress restoring civil order there, and a record six in 10 want the level of U.S. forces reduced." Sixty-three percent say the war "was not worth fighting." Yesterday, Rep. Dave Obey (D-WI) explained that the decreased violence "may be because insurgents 'are running out of people to kill,'' a conclusion which echoes assessments by the Government Accountability Office and ret. Gen. James Jones.

CONGRESS -- CONYERS FILES CONTEMPT CITATIONS AGAINST MIERS AND BOLTON: Yesterday, House Judiciary Committee Chairman John Conyers (D-MI) filed contempt resolutions against former White House counsel Harriet Miers and current Chief of Staff Joshua Bolten for refusing to testify before Congress on the U.S. Attorney scandal. Conyers plans on asking "the House to vote to enforce his committee's subpoena for White House documents and testimony." White House officials, who have refused Conyers's requests on several previous occasions, "signaled they do not intend to negotiate, arguing that internal deliberations involving Miers and Bolten are covered by executive privilege." White House spokeswoman Dana Perino called Conyers's attempts to investigate the politically motivated dismissal of U.S. attorneys "futile" and said that "it won't go anywhere." A contempt citation from Congress would go to the U.S. Attorney for the District of Columbia for enforcement, but the Department of Justice has signaled that it "would not prosecute the contempt citation."

IRAQ -- PARSONS CORP. FAILS ANOTHER IRAQ RECONSTRUCTION PROJECT: After a year and $72 million in taxpayer money, Parsons Corporation has still neglected to fix "the disastrous plumbing and shoddy construction in barracks the company built at the Baghdad police academy, [where] the ceilings are still stained with excrement, parts of the structures are crumbling and sections of the building are unusable because the toilets are filthy and nonfunctioning." Faulty pipes and substandard concrete left the buildings in shambles, which Parsons -- also behind Boston's "Big Dig" disaster -- promised to fix last year. This incident is not the first time the company has failed on its contractual obligations. In 2004, the Bush administration awarded Parsons a contract to construct 142 primary health centers across Iraq. But in 2006, after spending roughly $200 million, Parsons reported it would complete no more than 20 buildings. House Oversight Committee Chairman Henry Waxman (D-CA) said in a statement, "The police academy was supposed to be a showcase project, but it now epitomizes wasteful spending and incompetent oversight."

The U.S. military announced the deaths of five more soldiers today, "making 2007 the deadliest year of the war for U.S. troops. ... At least 852 American military personnel have died in Iraq so far this year -- the highest annual toll since the war began in March 2003, according to AP figures."

69 percent: Number of Americans who believe that waterboarding is torture, according to a new CNN poll. Another 58 percent say that the U.S. government should be barred from using the procedure "to try to get information from suspected terrorists."

Sen. Chuck Schumer (D-NY) pens an op-ed in The New York Times explaining why he will vote for Attorney General nominee Michael Mukasey, arguing that he "would do a good job in turning the department around." Schumer adds that Congress is now considering legislation that would explicitly ban the use of waterboarding, and he is "confident that Judge Mukasey would enforce that law" should it pass.

President Bush urged Pakistani President Pervez Musharraf to hold elections and give up his army post "as soon as possible," but "gave no indication that the general's imposition of emergency rule would bring about any significant change in American policy." Members of Congress said they will review aid to Pakistan, but did not immediately propose a cutoff or reduction.

"Six years after the September 11, 2001, attacks, Al Qaeda is a potent threat to the West and will take at least a generation to defeat, according to the most recent assessment by the head of Britain's intelligence agency, MI5."

"The number of Iraqis fleeing their homes has more than quadrupled since the U.S. troop buildup began in February, leaving 2.3 million Iraqis displaced and further dividing the country along sectarian lines." If violence is decreasing in Iraq, it may be because insurgents "are running out of people to kill," House Appropriations Committee Chairman David Obey (D-WI) said.

The nationwide average gas price went above $3 a gallon Monday, "to the highest in more than three months as climbing oil prices pushed up prices at the pump. ... The average gas price has never topped $3 in November, a development that adds to uncertainty about how much consumers will spend when faced with higher energy bills."

And finally: The entire House delegation from New England has signed on to an official commendation of the Red Sox after the team's recent World Series win. The bill -- stating in part that the team "epitomized sportsmanship, selfless play, team spirit, determination, and heart" -- picked up 21 members, three more than supported a similar one in 2004. Rep. Stephen Lynch (D-MA) added in a statement, "God is good."

Sen. Sheldon Whitehouse (D-RI) yesterday introduced the Caging Prohibition Act, a bill that would outlaw a "long-recognized voter suppression tactic which has often been used to target minority voters."

COLORADO: Gov. Bill Ritter (D) unveils a plan to tackle global warming.

OREGON: Residents vote today on "whether to raise the state's cigarette tax to pay for an expansion of children's health care."

VERMONT: State is ranked the healthiest in the nation.

THINK PROGRESS: Former vice president Al Gore rips the media: "don't give equal time to someone who believes the earth is flat."

DEMOCRACY ARSENAL: The State Department misfires in Iraq pitch to diplomats.

NO QUARTER: Twenty-four former intelligence officials demand a hold on Attorney General nominee Michael Mukasey's nomination.

SWAMPLAND: Conservative website pans new Eagles album because there is "not a word about Islamofascists trying to blow us all up" on it.

Q: Is it ever reasonable to restrict constitutional freedoms in the name of fighting terrorism?
PERINO: In our opinion, no.
-- White House spokesperson Dana Perino, 11/5/07, on the recent anti-democratic crackdown in Pakistan

VERSUS

"A federal judge on Thursday ruled that the U.S. government's domestic eavesdropping program is unconstitutional and ordered it ended immediately."
-- CNN, 8/17/06

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