PAUL JAY, SENIOR NEWS EDITOR: Yesterday in U.S., Senate Judiciary Committee, President Bushs nominee for new Attorney General, Michael Mukasey, was passed and sent to the Senate for confirmation. The most interesting votes of course were those of Dianne Feinstein and Chuck Schumer, both Democrats, who voted with the Republicans to support the Bush nominee. Joining us from New York to discuss this development is Michael Ratner, the Director of The Center for Constitutional Rights. So what do you make of this vote and particularly the votes of Schumer and Feinstein?
MICHAEL RATNER, PRESIDENT, THE CENTER FOR CONSTITUTIONAL RIGHTS: Well what was really an outrage to me, it was one of the saddest days I’ve actually had and civil libertarians in the United States have had since 9-11. Michael Mukasey, the nominee for attorney general, had been asked at the hearings about waterboarding. He had first said waterboarding, which people know is simulated drowning. He first said that he didn’t know what it was, which was obviously a lie. When it was explained to him what it was, he said, well, I can’t really say whether its torture, because I don’t know exactly how it’s done, I don’t know the process by which it’s done. And then he said, on the other hand, if it is torture, then it’s illegal. So he never was willing to say that waterboarding, a classic torture since the inquisition, constituted torture. That actually put his nomination in jeopardy for a short while. And as the final vote came out, every Democrat on the committee but two, Senators Schumer and Feinstein, voted against the nomination of Michael Mukasey for attorney general of the United States, primarily on the grounds that he refused to denounce a method of torture that has actually been used by the United States against alleged members of Al Qaeda or alleged terrorists.
JAY: All the history of this case, from Alberto Gonzales, has been rather murky. The legal opinion that had led to a White House authorization of these kinds of abuses, of torture, there’s crazy stories of night time rides to get Ashcroft signing off on memos to legalize these issues. Many people have said the reason Mukasey wouldn’t come right out and say this is because the White House and others are very considerate about current legal liability for what has already gone on. And if he comes out and says this is illegal, then shouldn’t he then start an investigation into what’s been already happening?
RATNER: We actually don’t know the answer. We don’t know what he really thinks. He said in the end, after being forced to say that it was repugnant. It is of course true it’s illegal whether he says it or not. The fact is that if he says it, essentially he’d be working for criminals in the White House, because assuming this technique was approved — and from what we know from the memos it was, all the way up through the president — assuming that’s the case, it violates two federal U.S. statutes against torture and against war crimes. And, therefore, not only would he be essentially working for criminals, but he would have an obligation to begin a prosecution against them for that crime of waterboarding. It does seem to me he has that obligation anyways as attorney general. But of course saying it publicly, would have put even more pressure on him to do so. The sad part is that was one issue, waterboarding. There were other issues that the Democrats should have never voted for him, Schumer and Feinstein. I mean, he wants special trials for terrorists; he believes in the concept of so-called enemy combatants; he has a long history, really, that is anti-civil liberties; and very pro the Bush administration’s excesses in this so-called war on terror. So it’s a bad vote. It’s an embarrassing vote. But what we have said all along at the Center for Constitutional Rights and others have said, it’s the Democrats in our Congress, sadly, and this was the best example are really the handmaidens of the torture program, by votes like this, by giving amnesty for past actions regarding torture and other kinds of issues like that. So we’re in a very bad place right now post 9-11 on the torture issue.
JAY: Chuck Schumer defended his vote by saying that if they hadn’t confirmed Mukasey, then Bush would have put in a temporary attorney general that would have been completely beholden to him; that Schumer and others have said: Mukasey is at least a credible justice and a man of integrity. So better to have that than a temporary person who will actually make even more politicized the attorney general’s office. What do you make of Schumer’s defense?
RATNER: Schumer’s argument is ridiculous. What Schumer did by voting for this man who refused to denounce waterboarding; he sent a message to the world that its okay to continue the torture program of the United States and waterboarding. Think of how much better it would have been had the senate said, No, we will not confirm someone who will not unequivocally condemn torture and waterboarding. That would have sent the right message to both, people in the United States and the world, and we would have been much better off, much better off with that message and an interim attorney general appointed by the president who just runs this department for the next year, thirteen months, whatever is left in the Bush administration. Because, there is a time, really, and the time is now, where our Senate in United States should have stood up and said: not a torture. Instead, what they have said all along is essentially by inaction go ahead and torture and in this case actually by action approving someone who refuses to condemn it.
JAY: The whole issue of holding this administration accountable for violation of law is something the leadership of the Democratic Party does not seem to want to take up. Yesterday, Kucinich’s resolution to move ahead with impeachment hearings against vice-president Cheney was more or less squashed by the Democratic Party leadership by putting it into the judiciary committee. But you’ve actually taken up this issue of trying to have some level of accountability, but you have to leave the United States to do it. Could you tell us what you’re involved with.
RATNER: Well, the Democrat’s theory here is that they can win the election without making the current Bush administration accountable for the torture programs, sending people abroad for torture, Guantanamo, etcetera. Ah, the sad part is, of course, they may not be able to win like that, but even worse is that kind of practice will continue.. And there’s been no accountability in the United States for the torture program. Obviously, the government itself is not doing anything to prosecute. The Congress has not held any hearings. And therefore what we’ve been forced to do as lawyers in the last couple of years is go abroad to try and get criminal investigation of the key leadership of the Bush administration. We filed a case in Germany a couple of years ago. We lost that case. That was against Donald Rumsfeld. It’s on appeal. But recently, in fact just a couple of weeks ago, Donald Rumsfeld made the big mistake of going to give a speech in France, in Paris. But it was a secret speech. We found out about it. We filed the case the day before Rumsfeld’s speech with the prosecutor in France. In that case we’ve had Rumsfeld here. And the general rule in law, which should be very clear, is that when an alleged torturer appears on your territory, there’s an obligation of the country to go and investigate and prosecute that person. We served the prosecutor and we said, “he’s here.” He’s here for a speech. We want you to arrest him or give him an arrest warrant or a witness warrant to testify. Rumsfeld did come for the speech. He came out on the street; he didn’t know what to expect. He didn’t know anything about this, apparently. He walked in to give the speech, gave his speech [inaudible] came up during the speech, and then snuck out the back door and went into the American Embassy and fled France, out of France, from what we understand, before the prosecutor had a chance to actually serve him. I think what went on here is the prosecutor was a little reluctant to serve him; on the other hand there was an obligation to do so. Our view of the case is, in some way, that its a big victory for us [inaudible]because we are demonstrating to Rumsfeld that anywhere in the world he goes, we will be able to follow law suit against him and ultimately, ultimately, I think we will prevail.
JAY: Is there any more that can be done for in terms of legal recourse within the United States in terms of making this administration accountable? And are there any Democrats that are working to pursue this, either in the Senate or in Congress?
RATNER: The question of accountability within the United States from a legal point of view has been difficult. Ah, we and other civil liberties organizations have brought a dozen cases or more for torture on Guantanamo detainees, Abu Ghraib detainees, etcetera, and have had all of those cases dismissed. You’re actually, though, talking to me on a very good day. Yesterday we got our first beginning of a victory that may hold part of the United States establishment accountable for torture. We sued a company called CACI which is a private interrogation company that was at Abu Ghraib, that we alleged was involved in the torture of plaintiffs at Abu Ghraib. And the court yesterday said, that we could actually continue with the suit and it would go before a jury to decide the role of CACI in the torture of people at Abu Ghraib. This was a private interrogation company, a corporation, similar really to Blackwater. It means really its a bad precedent for Blackwater. It’s a good one for us, who’ll sue Blackwater as well. So the one way we’ve been able to begin to start getting accountability is not go directly after U.S. officials, but go after really what you would have to call either their handmaidens or subsidiaries or, really, the contract mercenaries essentially. So we are making the slightest bit of progress on this issue. As to the Senate in the House, sure, we have Democrats in those places that have stood up against torture and stood up against the post 9-11 excesses. Obviously, one of our presidential candidate Dennis Kucinich is one of the key ones. Senator Leahy from Vermont voted against Mukasey’s nomination in the committee. But with all of them, I don’t think they are doing enough. I think the key thing e.g. is Mukasey now that nomination comes to the floor of the Senate, any senator could try and filibuster that nomination. If the Democrats really have any guts, it only takes forty Senators to keep that nomination from going through. If Leahy actually acts on what he thinks and does a filibuster, perhaps he can pick up the 40 votes. He certainly ought to try, it would certainly be a big plus step; plus, the question is: are these Democrats just talking words and telling us, Oh! we just don’t like Mukasey? Or are they actually going to do something? And so far, we haven’t seen them willing to do something.
JAY: Thank you very much, Michael.
RATNER: Thank you very much, Paul.