Author's note: Twenty-four former intelligence and national security officials
delivered an urgent message Monday morning to the chairman and the ranking minority
member of the Senate Judiciary Committee, calling on them to hold the nomination
of Judge Michael Mukasey for attorney general until he states his opinion on
the legality of waterboarding.
Their message strongly endorsed the view of former judge advocates general
that waterboarding "is inhumane, is torture, is illegal." The intelligence
veterans added that it is also a notoriously unreliable way to acquire accurate
They noted that the factors cited by the president and Mukasey as obstacles
to his giving an opinion on waterboarding can be easily solved by briefing Mukasey
on waterboarding and on CIA interrogation methods.
The former intelligence officials pointed out that during their careers
they frequently had to walk the thin line between morality and expediency, all
the while doing their best to abide by the values the majority of Americans
have held in common over the years. They appealed to Senators Patrick Leahy
and Arlen Specter to rise to the occasion and discharge their responsibility
to defend those same values.
Chairman and Ranking Member
Senate Committee on the Judiciary
Former U.S. Intelligence Officers
Nomination of Michael Mukasey for Attorney General
Dear Senators Leahy and Specter,
Values that are extremely important to us as former intelligence officers are
at stake in your committee's confirmation deliberations on Judge Michael Mukasey.
With hundreds of years of service in sensitive national security activities
behind us, we are deeply concerned that your committee may move his nomination
to the full Senate without insisting that Mukasey declare himself on whether
he believes the practice of waterboarding is legal.
We feel this more acutely than most others, for in our careers we have frequently
had to navigate the delicate balance between morality and expediency, all the
while doing our best to abide by the values the vast majority of Americans hold
in common. We therefore believe we have a particular moral obligation to speak
out. We can say it no better than four retired judge advocates general (two
admirals and two generals) who wrote you over the weekend, saying: "Waterboarding
is inhumane, it is torture, and it is illegal."
Judge Mukasey's refusal to comment on waterboarding, on grounds that it would
be "irresponsible" to provide "an uninformed legal opinion based
on hypothetical facts and circumstances," raises serious questions. There
is nothing hypothetical or secret about the fact that waterboarding was used
by U.S. intelligence officers as an interrogation technique before the Justice
Department publicly declared torture "abhorrent" in a legal opinion
in December 2004. But after Alberto Gonzales became attorney general in February
2005, Justice reportedly issued a secret memo authorizing harsh physical and
psychological tactics, including waterboarding, which were approved for use
in combination. A presidential executive order of July 20, 2007 authorized "enhanced
interrogation techniques" that had been banned for use by the U.S. Army.
Although the White House announced that the order provides "clear rules"
to govern treatment of detainees, the rules are classified, so defense attorneys,
judges, juries – and even nominee Mukasey – can be prevented from viewing them.
Those are some of the "facts and circumstances." They are not hypothetical;
and there are simple ways for Judge Mukasey to become informed, which we propose
Last Thursday, President George W. Bush told reporters it was unfair to ask
Mukasey about interrogation techniques about which he had not been briefed.
"He doesn't know whether we use that technique [waterboarding] or not,"
the president said. Judge Mukasey wrote much the same in his Oct. 30 letter,
explaining that he was unable to give an opinion on the legality of waterboarding
because he doesn't know whether it is being used: "I have not been made
aware of the details of any interrogation program to the extent that any such
program may be classified and thus do not know what techniques may be involved
in any such program." Whether or not the practice is currently in
use by U.S. intelligence, it should in fact be easy for him to respond. All
he need do is find out what waterboarding is and then decide whether he considers
The conundrum created to justify the nominee's silence on this key issue is
a synthetic one. It is within your power to resolve it readily. If Mukasey continues
to drag his feet, you need only to facilitate a classified briefing for him
on waterboarding and the CIA interrogation program. He will then be able to
render an informed legal opinion. We strongly suggest that you sit in on any
such briefing and that you invite the chairman and the ranking member of the
Senate Select Committee on Intelligence to take part as well. Receiving the
same briefing at the same time (and, ideally, having it taped) should enhance
the likelihood of candor and make it possible for all to be – and to stay – on the
same page on this delicate issue.
If the White House refuses to allow such a briefing, your committee must, in
our opinion, put a hold on Mukasey's nomination. We are aware that the president
warned last week that it will be either Mukasey as our attorney general or no
one. So be it. It is time to stand up for what is right and require from the
executive the information necessary for the Senate to function responsibly and
effectively. It would seem essential not to approve a nominee who has already
made clear he is reluctant to ask questions of the White House. How can a person
with that attitude even be proposed to be our chief law-enforcement officer?
We strongly urge that you not send Mukasey's nomination to the full Senate
before he makes clear his view on waterboarding. Otherwise, there is considerable
risk of continued use of the officially sanctioned torture techniques that have
corrupted our intelligence services, knocked our military off the high moral
ground, severely damaged our country's standing in the world, and exposed U.S.
military and intelligence people to similar treatment when captured or kidnapped.
One would think that Judge Mukasey would want to be briefed on these secret
interrogation techniques and to clarify where he stands.
The most likely explanation for Mukasey's reticence is his concern that, should
his conscience require him to condemn waterboarding, this could cause extreme
embarrassment and even legal jeopardy for senior officials – this time not just
for the so-called "bad apples" at the bottom of the barrel. We believe
it very important that the Senate not acquiesce in his silence – and certainly
not if, as seems the case, he is more concerned about protecting senior officials
than he is in enforcing the law and the Constitution.
It is important to get beyond shadowboxing on this key issue. In our view,
condoning Mukasey's evasiveness would mean ignoring fundamental American values
and the Senate's constitutional prerogative of advice and consent.
At stake in your committee and this nomination are questions of legality, morality,
and our country's values. And these are our primary concerns as well. As professional
intelligence officers, however, we must point to a supreme irony – namely, that
waterboarding and other harsh interrogation practices are ineffective tools
for eliciting reliable information. Our own experience dovetails well with that
of U.S. Army intelligence chief, Maj. Gen. John Kimmons, who told a Pentagon
press conference on Sept. 6, 2006: "No good intelligence is going to come
from abusive practices. I think history tells us that. I think the empirical
evidence of the last five years, hard years, tells us that."
Speaking out so precisely and unequivocally took uncommon courage, because
Kimmons knew that just across the Potomac President Bush would be taking quite
a different line at a press conference scheduled to begin as soon as Kimmons
finished his. At the White House press conference focusing on interrogation
techniques, the president touted the success that the CIA was having in extracting
information from detainees by using an "alternative set of procedures."
He said these procedures had to be "tough," in order to deal with
particularly recalcitrant detainees who "had received training on how to
resist interrogation" and had "stopped talking."
(Official duties refer to former government work.)
Intelligence Analyst, Directorate of Intelligence, CIA
Directorate of Operations, CIA for 26 years – 22 of them overseas; former
Chief of Station, Saudi Arabia
Supervisory Special Agent for 32 years, FBI; U.S. Marine Corps for three
Supervisory Special Agent, Counterterrorism, FBI
Operations officer and counter-terrorist specialist, Directorate of
Intelligence Analyst, Directorate of Intelligence, CIA; Federal law
Division Chief, Directorate of Intelligence, CIA; Professor, National
Defense University; Senior Fellow, Center for International Policy
Intelligence analysis and operations officer, CIA; Deputy Director,
Office of Counter Terrorism, Department of State
Executive Assistant to the Deputy Director for Intelligence, CIA: Editor,
Studies In Intelligence
Supervisory Special Agent, FBI
W. Patrick Lang
U.S. Army Colonel, Special Forces, Vietnam; Professor, U.S. Military
Academy, West Point; Defense Intelligence Officer for Middle East, Defense Intelligence
Agency (DIA); founding director, Defense HUMINT Service
Operations Officer, Directorate of Operations, CIA; counterintelligence;
coordination among intelligence and crime prevention agencies; CIA policy coordination
staff ensuring adherence to law in operations
Intelligence Analyst for terrorism, Directorate of Intelligence, CIA
Jon S. Lipsky
Supervisory Special Agent, FBI
Senior Estimates Officer, National Intelligence Council, CIA; History
professor; Veteran, U.S. Marines (Korea)
Foreign Service Officer and Intelligence Analyst, Department of State;
Deputy Coordinator for Counter-terrorism, Department of State; National Security
Council (NSC) Director for Non-Proliferation
Operations Officer, Directorate of Operations, CIA by way of U.S. Navy
National Intelligence Officer for Warning; Senior Director for Intelligence
Programs, National Security Council
Intelligence Analyst, Directorate of Intelligence, CIA; morning briefer,
The President's Daily Brief; chair of National Intelligence Estimates;
Co-founder, Veteran Intelligence Professionals for Sanity (VIPS)
U.S. Army Intelligence Analyst, Germany and Iraq (Abu Ghraib); Whistleblower
Special Agent and attorney, FBI; Whistleblower on the negligence that
facilitated the attacks of 9/11.
Foreign Service Officer; Chargé d'Affairs, Iraq (1990); Ambassador
to Gabon and Sao Tome/Principe; Senior Director for African Affairs, NSC
Valerie Plame Wilson
Operations officer, Directorate of Operations, CIA