I am writing this on November 13^th.  That day probably has little significance for most readers of this blog. But it is a day, as they say, that should live in infamy. On that date in 2001, two months after 9/11, President Bush issued Military Order Number 1. (www.whitehouse.gov/news/releases/2001/11/20011113-27.html)  I remember the shock I awoke to upon reading the military order in the newspapers of November 14^th. I remember thinking to myself that there has just been a coup d’etat in America, perhaps an exaggeration, but nonetheless a watershed moment in a country that I still though had some semblance of a democracy and of the principle that Presidential authority was under law.

            As most of you may not recall the order, let me remind you of its three key provisions. First,  the President claimed the authority to capture, kidnap or otherwise arrest any non-citizen (it was later extended to citizens) anywhere in the world including the United States whom the President believed was involved in international terrorism and hold them forever without any charges, proceedings or trial. Amazing—a person could be held forever just because the President wanted them so held; he took on the power to disappear people.  Second, the order did provide that if, and if is the crucial word here, if the person was tried (there never needed to be a trial) such trials were to be held by special ad hoc courts called military commissions. These commissions had no resemblance to regular trial courts. The entire proceeding could take place in secret, with evidence from torture, and those found guilty could be executed in secret. Third, to the extent the names of those imprisoned or tried could be determined and lawyers found, no court could hear any case.  This order embodies within it the violations of fundamental rights we are facing today:  indefinite detention without trial, Guantanamo, secret sites, special trials and disappearances. While it does not mention torture, that appears to have come a bit later, a secret detention system is part and parcel of a torture system.  Let’s also repeat:  this was a military order in a society and country that was us still or purported to be under civilian rule.

 This orders more then any other single document embodies our lost liberties. It was this document that pushed the Center for Constitutional Rights into action. It was this document that made CCR begin the historic fight the rights of those who would a few months later be imprisoned at Guantánamo. We said, despite the hate and the anger that ensued, that we would represent the first detainees imprisoned under this order and we did. (http://www.law.uchicago.edu/tribunals/nyt_113001)  We are still doing so today. On December 5 the latest in the Guantanamo cases will be argued in the Supreme Court. We will never give up this fight.

If Schumer and Feinstein want to understand the “procedure,” they should demand to interview the men who were likely subjected to it.

By Michael Ratner

Nov. 06, 2007 | This week Michael Mukasey will seek to clear hurdles on his path to become the highest law enforcement official in the nation. Yet he still refuses to answer a fundamental question: whether or not waterboarding is torture and, therefore, prohibited under our laws. No matter what our president says, this is not political bickering. It is about whether the rule of law still means anything to the executive. And whether our senators have the backbone to stand up for a principle more profound than political expediency.

If senators such as Charles Schumer and Dianne Feinstein have doubts about whether waterboarding is torture, they should — and should be allowed to — interview the men who have likely experienced it in secret CIA detention facilities in American hands.

For example, they should interview Majid Khan, a Baltimore resident abducted and held for years in secret CIA prisons. He was a “ghost detainee” who this past year was among the “reappeared” at Guantánamo.

President Bush himself has clearly stated that Khan was held at a secret CIA facility before being transferred to Guantánamo. Bush also made clear that an “alternative set of procedures” were enforced — procedures widely believed to include waterboarding.

So, was Majid Khan really waterboarded? I don’t know. Khan has been prohibited from speaking to anyone except my colleagues, lawyers at the Center for Constitutional Rights who were finally allowed to visit him recently. One of those attorneys, Gitanjali Gutierrez, and her colleagues have also since been silenced: The government forced them to sign a protective order because Khan knew about “enhanced interrogation techniques.” Likely translation: Khan was tortured and the government is trying to cover it up by silencing him — and even his attorneys.

So the government has successfully kept the public in the dark. But senators on the Senate Judiciary Committee can turn on the light.

Those senators are perfectly within their rights and powers to pick up the phone right now and demand to interview Khan and others who were likely tortured at CIA secret sites. They can conduct classified interviews with the lawyers for the Center for Constitutional Rights about their milestone visit with Khan. They can learn exactly what happened to these men. And, if the men were waterboarded, they can learn exactly what the practice entails.

What they will likely hear are descriptions like one written by Henri Alleg, a French journalist who suffered waterboarding during the Algerian war: “I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.”

And so the question is extremely simple: Do the men and women who serve on the Senate Judiciary Committee want to know, or not? Do they care about whether our nation has tortured? And if they do care, are they still prepared to confirm a man to be our attorney general whose legal and moral compass is so deformed that he cannot speak plain truth? If the U.S. Senate cannot summon the courage and decency to draw this basic line, then a citizen must ask if it serves any useful purpose at all.

I believe that upon talking to victims of waterboarding any reasonable senator — or citizen — will define it as torture. There is no reasonable disagreement on this point. It was a technique invented in the Spanish Inquisition and used to terrible effect in the centuries since. The only question is whether there is any institution or group of politicians in this nation with the will to stand up for our Constitution, even at the risk of their own political prospects. If there are such men and women, then there is yet hope that our nation will rescue the Constitution from those who would shred it.

This is not a moment for political theater. This is not a moment for politics at all. This is the moment for good and decent leaders to remember that the truth still matters and to act accordingly. Michael Mukasey aspires to be the living face of America’s laws. By talking to ghost detainees about their experiences, we can help him reveal if he understands or respects those laws at all.

By Michael Ratner and Jonathan Bennett*

Two weeks ago the struggle against the use of torture in the U.S. got a boost, by accident. A federal court in New York City published an opinion in a civil suit that includes a graphic description of the FBI extracting a false confession from a completely innocent man by threatening to have his family tortured. Making such a threat is considered torture.

But the court seems to have belatedly realized it made a mistake in publishing the torture details. Within minutes of having published the opinion, the court withdrew it and published a redacted version a day later. In place of the threat of torture, the sanitized version reads: “This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, [FBI Agent] Templeton did not contest that [the suspect’s] statements were coerced.”

But the cat was out of the bag. The original opinion had been copied, so we have the now-suppressed text.

The innocent man who was tortured is an Egyptian named Abdallah Higazy. In 2001 he was a 30-year-old engineering student at Polytechnic University in Brooklyn. On September 11, he was living in the Millennium Hotel, which is across the street from the World Trade Center. All the hotel guests were evacuated when the second plane hit the towers.

When Higazy returned to the hotel to recover the property he left behind, he was confronted by three FBI agents, who asked him about a 2-way radio that had been found in the hotel, a radio designed for communication with aircraft. Higazy told them, truthfully, that he had never seen the radio and knew nothing about it. But the FBI agents thought that Higazy was lying, so they took him into custody.

While Higazy was being held in solitary confinement for 29 days, he “confessed” that the radio was his. But the case against him suddenly fell apart when an airline pilot showed up at the hotel to reclaim his property, including the same radio that Higazy had confessed was his.

Thanks to the court’s mistake, we know why Higazy invented a story about owning the radio and how the FBI got him do it. It paints an ugly picture of the way the FBI treats suspects and the way that the court of appeals helps cover up the FBI’s illegal behavior.

According to the unredacted decision, an FBI agent “explained that if Higazy did not cooperate, the FBI would . . . ‘make sure that Egyptian security gives [his] family hell.’”

The suppressed text of the opinion continues, “[The FBI agent who had questioned Higazy] later admitted that he knew how the Egyptian security forces operated: ‘that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.’”

“Higazy later said, ‘I knew that I couldn’t prove my innocence, and I knew that my family was in danger.’ He explained that ‘. . . . If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.’”

So, to protect his family, Higazy made up a story, with the FBI’s help. First Higazy said that he found the radio. But then he reversed himself and said he had no connection to the radio. “Agent Templeton next banged on the table and told Higazy to tell him the truth. Higazy then claimed he found the radio at the base of the Brooklyn Bridge, but once again recanted this story and said the radio was not his. And once again, Templeton banged on the table and demanded the truth.”

“Finally, Higazy explained to Templeton that he stole the radio from the Egyptian Air Force and used it to eavesdrop on telephone conversations. Higazy did not recant this version. Agent Templeton next prepared a written statement for Higazy to sign that included this explanation.”

The picture is pretty clear – whenever Higazy denied any connection to the radio, the FBI interrogator, who had already threatened Higazy’s parents, reiterated the threat with a display of violence. Finally Higazy came up with a story that satisfied the FBI, but which was also a total fabrication.

If we needed evidence that torture is not only immoral and illegal but also completely ineffective, could we ask for a better example?

*Michael Ratner is the president of the Center for Constitutional Rights, where Jonathan Bennett is a volunteer. The Center for Constitutional Rights is active in many cases to enforce the prohibition of torture in U.S. and international law.