WASHINGTON (CN) – A Senate subcommittee held a hearing Wednesday to determine how the American legal process allowed torture to be used. Republican senators defended the practice, saying there must be some reason “enhanced techniques” have been used for 500 years. Democrats took a different view with Senator Sheldon Whitehouse saying, “The law was ignored, bastardized, and manipulated.”
“What happened on September 11, 2001 was unprecedented,” said Senator Lindsey Graham, a Republican from South Carolina. “The nation was rattled and the administration went on the offensive. They saw the law as a nicety that we couldn’t afford. That’s not a crime.”
But Vermont Democratic Senator Patrick Leahy called it a breakdown in the rule of law. “That the elite legal office at the Justice Department responsible for guiding the executive branch so misused its authority is one of the fundamental breakdowns in the rule of law that dominated the last eight years.”
During the Bush administration, the Department of Justice’s Office of Legal Counsel decided that waterboarding and the use of other “enhanced interrogation techniques” were legally acceptable when used on enemy combatants under specific circumstances.
Weeks ago, President Barack Obama made the controversial decision to declassify some of the legal department’s interrogation memos. The memos are now widely seen as mistaken in their interpretation of the law, and the Senate has begun an investigation through the Subcommittee on Administrative Oversight and the Courts the chairmanship of Senator Whitehouse, a Rhode Island Democrat.
“The memos are an ethical train wreck,” David Luban, a Law Professor at Georgetown University Law Center, told the committee.
Republicans generally agreed, but said the memos resulted from good people who made bad decisions. They warned that debate over the memos could tear the country apart and argued against proscution of anyone involved.
“It should not have happened and the most important thing is to make sure it doesn’t happen again,” said Graham.
He pointed to former President Franklin Roosevelt, who imprisoned Japanese and Americans of Japanese decent during the Second World War. When the Republicans took office, he said, they didn’t go after FDR.
Graham also said the Bush administration had not intentionally violated any laws. “If you had in your mind and your heart that you’re going to disregard the law, you would not be getting legal advice.”
But Whitehouse, Democrat from Rhode Island, questioned whether the administration really had good intentions.
“We’ve been told you shouldn’t prosecute people who followed lawful orders, or relied on proper legal authorities, or in good faith offered their best legal advice,” said Whitehouse. “But those are questions aren’t they, and not answers?”
Graham questioned whether the techniques could really be called torture. “Torture rolls off the tongue with great ease,” he said. He referred to Ireland v United Kingdom, where courts ruled that interrogation practices used by the British against Irish terrorists was inhumane, but they did not call it torture.
Those practices, Graham said, were worse than what American interrogators have used.
Luban disagreed, and countered with the case United States v. Lee in 1982 where a U.S. appellate court referred to waterboarding as torture and punished four officers who had used the practice on prisoners.
Graham tried to establish that the enhanced techniques were useful, and asked Ali Soufan, an FBI Supervisory Special Agent and who oversaw interrogations, whether the enhanced techniques ever helped get information.
Soufan, who replied from behind a screen to protect his identity, answered that in his experience the techniques had never led to good information. He called the enhanced techniques “ineffective, slow and unreliable.”
Graham disagreed. “I think there is some information out there that shows these techniques did yield good information,” he replied. He added that there has got to be some reason the techniques have survived 500 years.
Senator Democratic Senator Dianne Feinstein, a member of the committee, is leading the investigation into the Bush administration’s interrogation and detention program.