Bush's Waterboarding Admission Prompts Calls For Criminal Probe

WASHINGTON -- The American Civil Liberties Union on Thursday joined a
growing chorus in the human rights community calling for a special
prosecutor to investigate whether former president George W. Bush
violated federal statutes prohibiting torture.

In his new memoir and ensuing book tour, Bush has repeatedly admitted
that he directly authorized the waterboarding of three terror suspects.
Use of the waterboard, which creates the sensation of drowning, has
been an iconic and almost universally condemned form of torture since
the time of the Spanish Inquisition.

Except for a brief period during which a handful of Bush
administration lawyers insisted that the exigencies of interrogating
terror suspects justified its use, waterboarding has always been
considered illegal by the Justice Department. It is also a clear
violation of international torture conventions.

The ACLU is urging Attorney General Eric Holder to ask Assistant U.S.
Attorney John Durham to investigate Bush. For nearly three years now,
Durham has been acting as a special prosecutor investigating a variety
of torture-related matters involving government officials considerably
lower on the food chain. Just this Tuesday, it was widely reported
that Durham had cleared the CIA's former top clandestine officer and
others in the destruction of agency videotapes showing waterboarding of
terror suspects -- but that he would continue pursuing other aspects of
his investigation.

"The ACLU acknowledges the significance of this request, but it bears
emphasis that the former President's acknowledgment that he authorized
torture is absolutely without parallel in American history," the group
wrote in its letter to Holder.

"The admission cannot be ignored. In our system, no one is above the
law or beyond its reach, not even a former president. That founding
principle of our democracy would mean little if it were ignored with
respect to those in whom the public most invests its trust. It would
also be profoundly unfair for Mr. Durham to focus his inquiry on
low-level officials charged with implementing official policy but to
ignore the role of those who authorized or ordered the use of torture."

In his new memoir, "Decision Points," Bush recalls his thought
process after CIA director George Tenet asked for permission to
waterboard alleged al Qaeda mastermind Khalid Sheikh Mohammed in early
2003. Bush's response: "Damn right."

In an interview with the Times of London published this
week, Bush used that language again, this time with feeling. James
Harding described asking Bush if he authorized the use of the waterboard
on Mohammed.

"Damn right!" he barks. "We capture the guy, the chief
operating officer of al-Qaeda, who kills 3,000 people. We felt he had
the information about another attack. He says: 'I'll talk to you when I
get my lawyer.' I say: 'What options are available and legal?' "

In an interview with NBC's Matt Lauer, Bush explained himself this way:

We believe America's going to be attacked again.
There's all kinds of intelligence comin' in. And-- and-- one of the
high value al Qaeda operatives was Khalid Sheik Mohammed, the chief
operating officer of al Qaeda... ordered the attack on 9/11. And they
say, "He's got information." I said, "Find out what he knows." And so
I said to our team, "Are the techniques legal?" He says, "Yes, they
are." And I said, "Use 'em."

LAUER: Why is waterboarding legal, in your opinion?

BUSH: Because the lawyer said it was legal. He said it did not fall
within the Anti-Torture Act. I'm not a lawyer, but you gotta trust the
judgment of people around you and I do.

The so-called "Torture Memos" were drafted by officials in the
Justice Department's Office of Legal Counsel under the strict
supervision of the vice president's office -- and were withdrawn within a
matter of months when other Bush lawyers found them utterly
unjustifiable.

For the record, the first time Bush admitted his direct role in
waterboarding was actually back in early June, when he casually
acknowledged what he'd done and said he'd do it again.

"Yeah, we waterboarded Khalid Sheikh Mohammed," Bush told the
Economic Club of Grand Rapids, Mich., in a paid appearance. "I'd do it
again to save lives."

I wrote at the time about the outraged response from some former military and intelligence officials.

Rep. Jerrold Nadler, the New York Democrat who (for now) chairs the
House Subcommittee on the Constitution, Civil Rights and Civil
Liberties, called for a criminal investigation into Bush's conduct on Tuesday.

He told MSBNC host Ed Schultz on Wednesday:

[T]he United States has always considered waterboarding
torture except during the Bush administration. We prosecuted Japanese
generals for waterboarding people. We prosecuted American soldiers for
waterboarding people and pressed that cage. The current attorney general
Mr. Holder has said that waterboarding is torture. We`ve always
regarded it as torture and under our statute, under our international
law, we are bound to prosecute. The president has a duty under the
constitution to take care the laws of faith to be executed and now that
former President Bush said that he personally ordered waterboarding,
there must be at least an investigation and a special prosecutor.

Nadler called Bush's admission a "smoking gun." But, he said, he was dubious that Holder would act.

"Judging by the record of this attorney general, he will not pay
attention, he will not respond," Nadler said. The reason: "[T]his
administration, unfortunately, has taken the opinion -- has taken the
attitude that they`re not going to look at any criminal actions within
the prior administration. They say, let`s look forward, not backward, by
that standard no one would ever prosecute any crime and this is a
violation of our obligations under the torture treaty, under the torture
convention, that Ronald Reagan signed."

Also on Tuesday, a Republican suggested for the first time that a
torture investigation in Congress might not be out of the question. As Think Progress reported, Rep. Jason Chaffetz (R-UT) told MSNBC's Dylan Ratigan that he's "not afraid of going after the Bush administration."

Amnesty International called for a criminal investigation on Wednesday.

"Under international law, anyone involved in torture must be brought
to justice, and that does not exclude former President George W. Bush.
If his admission is substantiated, the USA has the obligation to
prosecute him," said senior director Claudio Cordone. "In the absence of
a US investigation, other states must step in and carry out such an
investigation themselves."

Indeed, British human rights lawyer Geoffrey Robertson was quoted in
the British press this week as saying Bush's admission could leave him
open to arrest and possible prosecution if he visits countries that have
ratified the UN torture convention.

That includes a good chunk of the globe.

"George W Bush has confessed to ordering waterboarding, which in the
view of almost all experts clearly passes the severe pain threshold in
the definition of torture in international law," Robertson said. "[H]e
is an ex-head of state so he is not entitled to immunity from arrest and
trial."

Robertson added: "So his retirement travel plans may well be
circumscribed, although he never ventured abroad before he became
President, and no doubt made the statements in his book having been
advised of this potential consequence."

Here's the full text of the ACLU letter:

Dear Attorney General Holder:

The American Civil Liberties Union respectfully urges you to refer to
Assistant U.S. Attorney John Durham the question of whether former
president George W. Bush's conduct related to the interrogation of
detainees by the United States violated the anti-torture statute. See 18
U.S.C. SS 2340A.

In his recently published memoirs, President Bush discusses his
authorization of the waterboarding of Khalid Sheik Mohammed and Abu
Zubaydah. He states, for example, that he "approved the use of the
[enhanced] interrogation techniques," including waterboarding, on Abu
Zubaydah, and that he responded to a request to waterboard Khalid Sheik
Mohammed by stating: "Damn right." George W. Bush, Decision Points
169-70 (2010).

The Department of Justice has made clear that waterboarding is torture
and, as such, a crime under the federal anti-torture statute. 18 U.S.C. SS
2340A(c). The United States has historically prosecuted waterboarding
as a crime. In light of the admission by the former President, and the
legally correct determination by the Department of Justice that
waterboarding is a crime, you should ensure that Mr. Durham's current
investigation into detainee interrogations encompasses the conduct and
decisions of former President Bush.
The ACLU acknowledges the significance of this request, but it bears
emphasis that the former President's acknowledgement that he authorized
torture is absolutely without parallel in American history. The
admission cannot be ignored. In our system, no one is above the law or
beyond its reach, not even a former president. That founding principle
of our democracy would mean little if it were ignored with respect to
those in whom the public most invests its trust. It would also be
profoundly unfair for Mr. Durham to focus his inquiry on low-level
officials charged with implementing official policy but to ignore the
role of those who authorized or ordered the use of torture.

Failure to fully investigate the role of the former President in the use
of torture would also severely compromise our ability to advocate for
human rights in other countries. The United States has been a champion
of that cause for over half a century. Recently, while in Indonesia,
President Obama urged that country to acknowledge the human rights
abuses of the Suharto regime. He stated unequivocally that "[w]e can't
go forward without looking backwards." Without suggesting that our own
experience is equivalent, it is clear that the United States's authority
to push for such accountability in other countries, and the willingness
of those countries to follow our advice, would quickly unravel if we
failed even to investigate abuses authorized by our own officials.

The ACLU understands the gravity of this matter and appreciates the
difficulty of the Department of Justice's task. A nation committed to
the rule of law, however, cannot simply ignore evidence that its most
senior leaders authorized torture.

Thank you for your attention to this matter. For your convenience, I am
attaching the ACLU's letter of March 17, 2009, in which we asked you to
appoint an independent prosecutor to investigate crimes relating to the
abuse of detainees.

Sincerely,

Anthony D. Romero