On Thursday, January 15, at 9:30 a.m., the Senate Judiciary Committee will hold its confirmation hearing for Attorney General nominee Eric Holder. If the senators are willing to work together and to listen to those of us who elected them, the questioning might go something like this:
Mr. Holder, is the water torture, often now referred to as “waterboarding”, torture? Are beatings torture? Are electric shocks torture? Is hanging someone by their wrists torture? What about the combined and repetitive use of sleep deprivation, subjection to temperature extremes and stress positions, threatening with dogs, and sexual humiliation — is that torture?
What about employing any of the techniques we’ve discussed until the result is death: up until the point where it becomes murder is such activity torture? Is it cruel? Is it inhuman? Is it degrading?
Does our Bill of Rights ban cruel and unusual punishment? Does the Universal Declaration of Human Rights ban both torture and cruel, inhuman or degrading treatment or punishment? Under Article VI of our Constitution is the UDHR the supreme law of the land? Does the Geneva Convention relative to the Treatment of Prisoners of War ban violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, as well as outrages upon personal dignity, in particular, humiliating and degrading treatment? Under Article VI of our Constitution are the Geneva Conventions the supreme law of the land? Does the International Covenant on Civil and Political Rights ban torture or cruel, inhuman or degrading treatment or punishment? Does the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment require that the United States work to prevent all forms of torture? Are these last two treaties the supreme law of the land? Does Title 18, U.S. Code, Section 2340A ban torture and conspiracy to torture?
Is torture ever legal? Is murder ever legal? If the Justice Department issued a so-called legal opinion declaring torture legal, would government officials who requested that opinion and then claimed to be following it have a legal license to torture?
Would it be a violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to fail to prosecute torture? In prosecuting a crime that has been established as an illegal government policy, does the law require prosecuting those who created the policy or only a few token examples of the lowest ranking individuals who carried it out?
In a January 2002 CNN interview you said:
“One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention you are really limited in the amount of information that you can elicit from people. It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.”
Can you please give us your definition of which human beings fall under the Geneva Conventions’ protections, which fall under the protections of the Universal Declaration of Human Rights, which fall under the International Covenant on Civil and Political Rights, which fall under the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, which fall under the protections of our Constitution, and which do not effectively have human rights? Is it your understanding of the law that only prisoners of war must be protected from torture?
Are you aware that in 2005 the United States Congress redundantly criminalized torture, and President George W. Bush signed the bill into law but added what he called a “signing statement” supposedly giving himself the right to torture despite the law he had just created? Can you find signing statements anywhere in our Constitution? Did the president have any rights after issuing that so-called signing statement that he did not have beforehand? Can any president alter any law by appending a signing statement to it?
Do you believe that apart from prisoners of our judicial system and prisoners of war, and in direct violation of the explicit requirements of the Fourth Geneva Convention, a third category of prisoners legally exists called “enemy combatants,” that our laws support this contention, and that these prisoners are not entitled to universal human rights? Is it legal for the United States or any secret agency or mercenary or contractor thereof to kidnap and hold people outside of our judicial system or without the rights provided by our laws? Is it legal for the United States to ship prisoners to other nations in order to deprive them of legal protections?
Do you believe our laws change during war time, yes or no? What legally determines whether or not our nation is at war?
Do you believe that our laws can be ignored once they have been on the books for a quarter century? Is the Foreign Intelligence Surveillance Act a law that need not be enforced? Is part of the job of the attorney general to ensure that FISA is enforced and its violators prosecuted? Are you aware that George W. Bush has openly admitted to violating FISA?
Are you familiar with Title 18, U.S. Code, Section 371, dealing with conspiracy to defraud the United States? And Sections 1341 and 1346 prohibiting using mail and wire communications to defraud the public? Would the justification of an aggressive war, itself banned by the United Nations Charter, and the pretense of defensive rationales strike you as one of the more significant or more trivial topics on which Congress and the public might be defrauded?
Are you aware that Article I, Section 9, of our Constitution bans the spending of public money without appropriation by Congress? Are you aware that President George W. Bush secretly spent money not appropriated for that purpose to secretly begin the invasion of Iraq? Are you aware that the Department of the Treasury has been giving and loaning trillions of dollars without congressional approval?
Are you aware that congress members and scholars and former federal prosecutors have developed long lists of the statutory violations publicly known to have been committed by President George W. Bush and Vice President Richard B. Cheney? Does the topic seem unimportant to you?
Is it legal for the Justice Department to hire and fire and prosecute on the basis of loyalties to a political party?
Is it legal for the Justice Department to issue opinions declaring violations of laws to be legal? Do such opinions have any force of law?
James Madison and George Mason argued that the U.S. Constitution should include the power of impeachment in case a president were ever to pardon a crime that he was himself involved with. Is it possible that they also believed that the pardon power included the right to engage in that very abuse, and that they simply refrained from ever pointing out this problem? Can a president legally order someone to commit murder and then pardon that murder? Can a president legally order someone to crush a boy’s testicles and then pardon that testicle crushing? Would such pardons, in contrast to merely corrupt and abusive pardons such as you yourself have facilitated in the past, fail to actually be pardons at all, given their fundamental conflict with maintaining any system of law whatsoever?
Between 1 percent and 100 percent, please tell us what percentage of the crimes you would anticipate prosecuting will have already occurred when you prosecute them, as distinct from crimes you will prosecute that will not have occurred yet? Is there a deterrent value to punishing crimes? Do you believe that prosecuting crimes is in conflict with or in support of moving forward, advancing, looking to the future, and focusing on better days to come?
You once said:
“The Attorney General is the one Cabinet member who’s different from all the rest. The Attorney General serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance.”
If there is a conflict between the law and the wishes of the president, which will guide your actions?
Will you create an independent prosecutor to prosecute the top officials responsible for crimes committed by the Bush administration?
Will you take steps to ensure that any commissions established by this Congress and/or the president do not delay or interfere with possible prosecutions or provide immunity to high-level criminals?
If an employee of the Justice Department publicly reveals criminal activity in the Justice Department while you are in charge of it, will that whistleblower be rewarded or punished?
If the House, Senate, and committees thereof reissue next week all of the subpoenas that have been illegally ignored by your predecessor, will you enforce them? If Congressional committees choose to use their own inherent power of contempt and compel the Capitol Police to imprison individuals held in contempt until they agree to testify openly and honestly before Congress, will you attempt in any way to interfere with the activities of the first branch of this government?
DAVID SWANSON is the author of the upcoming book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press. He can be reached at: firstname.lastname@example.org