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Rep. Jerrold Nadler (D-NY) Calls for Independent Counsel to Investigate Cheney and Rumsfeld for Violating Torture Laws

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Democratic Congressman Jerrold Nadler of New York has urged Attorney General Michael Mukasey to appoint an independent counsel to investigate Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, and other senior Bush administration officials for violations of the law relating to the torture of prisoners in US custody. Nadler is the chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Vice President Dick Cheney made headlines around the world last week when he admitted to direct involvement in approving the use of CIA torture. In an interview with ABC News, Cheney was questioned about the treatment of Khalid Sheikh Mohammed, who was waterboarded over a hundred times in US custody.

    JONATHAN KARL: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?

    VICE PRESIDENT DICK CHENEY: I was aware of the program, certainly, and involved in helping get the process cleared. That is, the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it. There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.

    JONATHAN KARL: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?


    JONATHAN KARL: And on KSM, one of those tactics, of course, widely reported was waterboarding. And that seems to be a tactic we no longer use. Even that, you think was appropriate?


AMY GOODMAN: On Sunday, Vice President Cheney appeared on Fox News and once again defended the Bush administration’s actions.

    VICE PRESIDENT DICK CHENEY: When you get into use of forces in wartime, it means collecting intelligence. And therefore, I think you’re fully justified in setting up a terrorist surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States. I think you can have a robust interrogation program with respect to high-value detainees. Now, those are all steps we took that I believe the President was fully authorized in taking and provided invaluable intelligence, which has been the key to our ability to defeat al-Qaeda over these last several years.

    CHRIS WALLACE: This is at the core of the controversies that I want to get to with you in a moment. If the President, during war, decides to do something to protect the country, is it legal?

    VICE PRESIDENT DICK CHENEY: In general proposition, I’d say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic. There’s no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time and wrestling back and forth about what kind of authority is appropriate in any specific circumstance. But I think that what we’ve done has been totally consistent with what the Constitution provides for.

AMY GOODMAN: Cheney’s comments come one week after a bipartisan Senate report accused former Defense Secretary Donald Rumsfeld and other top Bush administration officials of being directly responsible for the abuse and torture at Guantanamo and other US prisons.

The report says, “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

The report was released by Democratic Senator Carl Levin and Republican John McCain of the Senate Armed Forces Committee. It was based on a nearly two-year Senate investigation.

Well, on Friday, Democratic Congress member Jerrold Nadler of New York called on Attorney General Michael Mukasey to appoint an independent counsel to investigate Cheney, Rumsfeld and other senior Bush administration officials on torture charges. Congress member Nadler joins us here in our firehouse studio. He is chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

Welcome to Democracy Now!

REP. JERROLD NADLER: Good morning.

AMY GOODMAN: Talk about the significance of this report and what you’re calling for.

REP. JERROLD NADLER: Well, the report is an official finding of the Senate Armed Services Committee on a bipartisan basis, essentially, that the United States government, through the high officials of the Bush administration, authorized torture and cruel and degrading treatment of prisoners. It found, in effect, that the United States government, through high officials of the Bush administration, deliberately and knowingly broke the law, broke the Convention Against Torture, which is an international treaty to which the United States is a signatory and which, therefore, under the Constitution, is the supreme law of the land; broke the Anti-Torture Act, which is a United States law.

And the morality of this aside, you cannot have high officials deliberately break the law without accountability. The Vice President, on that interview we saw a few minutes ago, talked about the oath of office that the President, the Vice President, others take, and that is to preserve, protect and defend the Constitution of the United States. You are not preserving it, and you are not defending it; you are, in fact, perverting it, if you deliberately break the law, which is the supreme law of the land pursuant to the Constitution. It is imperative, if the United States is to remain a country of laws and not men, that people who break the laws be held accountable.

Now, that’s why I called for — now, the administration is not going to investigate itself. I sent a letter to the Attorney General three years ago, when the illegal wiretapping without warrants against the FISA Act was first revealed, demanding that he appoint the special prosecutor. I repeated that to Mukasey when he became Attorney General. And they’ve ignored that. So I sent another letter, this time saying, “Here’s a prima facie case in terms of the findings of the Senate committee and, a few days later, the admissions by the Vice President, which is an admission of guilt in breaking the law, that they were deliberate violations of the law. It is your duty under the law to appoint the special prosecutor,” which is what I’ve asked for.

AMY GOODMAN: And you know Mukasey, comes from here; he comes from New York.

REP. JERROLD NADLER: I know Mukasey, yes. And I fully expect that he will ignore that law, that letter. I fully expect that he will ignore, as the entire Bush administration has from its inception, the requirements of law. And there are things that it is imperative that the Obama administration, when it takes office, and the Congress, in January, take steps to hold officials accountable for violations of law, and really, not because we want vengeance and not because we want to be vindictive of what happened, but because holding people to the law and making them go through a legal process of proving guilt or innocence is the only way that you can minimize the likelihood of recurrence of law breaking and maintain the United States as a democratic country.

AMY GOODMAN: Do you have any indication the Obama administration would do this? It’s interesting that it’s John McCain, together with Senator Levin, who puts out this very damning report on Rumsfeld.

REP. JERROLD NADLER: We don’t know what the President is going to do. He has said in the past that people ought to be held accountable. He’s also said that we are not going to be looking to punish people from the past. I am sure he will get advice that says, “Mr. President, be a uniter, not a divider. Look to the past, not the future.” That is poisonous advice, because it guarantees, if nothing is done, that the next time some irresponsible person becomes president or secretary of defense or under secretary or whatever, that this kind of thing will happen again. We have now seen several presidents — we saw President Reagan, President Bush — pardon people in their own administration for crimes. It may be that President — this President Bush will do the same thing. And what this means is that it opens the door, and it invites future administrations to commit crimes.

AMY GOODMAN: Well, let’s talk about that. I mean, you rarely have Cheney being so open about — well, this is the first time he says, yes, he endorses, he supported it, he initiated it. Is he doing this because he wants a pardon for —- a pre-pardon? Even if -—


AMY GOODMAN: And what does that mean?

REP. JERROLD NADLER: What does what mean?

AMY GOODMAN: A pre-pardon.

REP. JERROLD NADLER: Well, it’s not a pre—

AMY GOODMAN: He’s not charged.

REP. JERROLD NADLER: No, no, it’s not a pre-pardon or preemptive. The pardon power is pretty unlimited. Some people would say totally unlimited. And certainly, President Bush — the first President Bush pardoned people who had not yet been charged with a crime. It is entirely possible that this President Bush will say, “I hereby pardon anyone who, between September 11th, 2001 and December 31st, 2008, allegedly violated the statutes against torture,” or whatever. He could do that. That’s a preemptive pardon. I think it’s wrong, as a matter of — not as a matter of law. It ought to be wrong as a matter of law.

AMY GOODMAN: Who did the first president preemptively pardon.

REP. JERROLD NADLER: Well, he pardoned Caspar Weinberger and various other people for their alleged roles. I say “alleged,” because it wasn’t proven, because the trials were aborted by the pardon.

AMY GOODMAN: But weren’t they indicted at that point?

REP. JERROLD NADLER: I don’t recall whether they were indicted or not. President Carter pardoned all people who were draft-evaders, so they could come home from Canada. And they hadn’t been indicted, and he didn’t use any specific names. So the pardon power is pretty unlimited.

AMY GOODMAN: And President Bush, Sr. issued these pardons on Christmas Eve.

REP. JERROLD NADLER: On Christmas Eve.

AMY GOODMAN: In 1992, right before he left.

REP. JERROLD NADLER: It remains to be seen what President Bush will do. But this is an ongoing long-term battle. And whether President Bush issues pardons or not, I think we have to take a number of legislative steps to rein in what is now the inordinate power of the executive branch to break the law with impunity. One, I am going to introduce legislation in January to restore the old special prosecutor statute, the one that Ken Starr abused that will have a protection in it. It will say — and what this says is if the administration doesn’t appoint a special prosecutor to investigate crimes it committed, then anyone can go to court and get a court to appoint a special prosecutor. But it will say only for official crimes committed by the administration that are as official acts. That will be a sharp limitation on that power.

Secondly, I’m going to introduce a constitutional amendment to restrict the President from issuing pardons for official acts by members of his own administration and from pardoning anyone, except for a crime for which they’ve already been convicted, and from issuing any pardon in the last several months before his term of office is over, so that there’s some political accountability.

And finally, and perhaps more important than anything else, we have to pass a special — the state secrets bill that I introduced in the House, that Senators Kennedy and Specter introduced in the Senate, because the only way you can enforce any rights in the Bill of Rights is either by prosecuting someone who illegally kidnaps you or tortures you or whatever, and if the administration won’t prosecute itself, you’ve got a problem there, or by suing, suing the administration for false arrest, for false imprisonment, for torture, whatever. But now, the administration comes in and moves to dismiss any civil case on the grounds that hearing the case would necessitate the revelation of state secrets to endanger the national security, and the case just gets dismissed with no showing that that is in fact the case. So we have to stop that, too.

AMY GOODMAN: Congressman Nadler, we have to break for stations to identify themselves. When we come back, I want to ask you about that open Senate seat. We’ve heard a lot about Caroline Kennedy. We’ve also heard your name. I also want to ask you about the economic crisis and continue on this issue of torture. Congressman Jerrold Nadler represents New York’s Eighth Congressional District. He will be entering his ninth term as a congressman in the next Congress.

This is Democracy Now! Stay with us.


AMY GOODMAN: Our guest is Congressman Jerrold Nadler. He represents New York’s Eighth Congressional District. It goes from the Upper West Side down right to Ground Zero.

REP. JERROLD NADLER: To, in fact, Coney Island.

AMY GOODMAN: In Brooklyn.


AMY GOODMAN: Speaking of districts, are you interested in the Senate seat?


AMY GOODMAN: And what is the politics that goes on behind this?

REP. JERROLD NADLER: Well, that’s very hard to know. This is an appointment. It’s entirely internal to Governor Paterson’s head. So one doesn’t really know what the politics is. Obviously, the people supporting Senator — I’m sorry, the people supporting Caroline Kennedy think that a public campaign would be helpful. Other candidates have not been doing it. I have not been doing a public campaign. And no one really knows.

AMY GOODMAN: Have you talked to Governor Paterson privately?


AMY GOODMAN: And do you think Caroline Kennedy is qualified to be senator?

REP. JERROLD NADLER: Well, that’s up to Governor Paterson to decide, and I’m not going to comment on that. All I’ll say is that I think that’s the wrong question, and the press has been asking the wrong question. The question should not be is Caroline Kennedy or any other individual, for that matter, qualified, because the assumption there is if you meet the certain minimum qualification, you’re entitled to the seat. The question ought to be the same question anyone hiring someone for any responsible job would ask, and that is, is this person the most qualified of all the available candidates? That’s the relevant question.

AMY GOODMAN: And why do you think you’re the most qualified?

REP. JERROLD NADLER: Well, I think all the candidates think they’re the most qualified. I think my record in Congress is a very progressive and forward-looking record. I think I’ve shown very good judgment. I was one of the few downstate people who voted against the war, against the PATRIOT Act. I’ve taken a leadership role on civil liberties, on economic development. And I led the battle against the — I led the battle for eight years against the Bankruptcy, so-called, Reform Act of 2005, which we now recognize as probably responsible for maybe a third of the foreclosures that are going on in this country.

AMY GOODMAN: Which Vice President-elect Joe Biden championed.

REP. JERROLD NADLER: Well, he supported it. About a third of the Democrats in the House voted for it. And I think my record on economic development in New York, in terms of port development and transportation, has been a very far-seeing record. But, you know, all of this is for the Governor to weigh, and other candidates have other merits and other accomplishments, and he’s got to weigh all of them.

AMY GOODMAN: In terms of how you fit in with the new Obama administration, the path you’re taking now, pushing, for example, 1531, which would — well, which urges President Bush not to pardon people, this is not the path of the Obama administration.

REP. JERROLD NADLER: Well, we don’t know what the path of the Obama administration is, as I said earlier. We will see. I certainly hope that the new administration will recognize, and there are comments from the President-elect and from Eric Holder, who’s going to be the new Attorney General, and from other people, all over the lot on this, frankly, so it’s impossible to predict. But I would hope that they would recognize a necessity to investigate whether crimes were committed and, if they were, to prosecute them, and not — more to the point, not to hold high government officials automatically exempt from the normal processes of justice, because to do that is to loosen the bonds that protect us all.

AMY GOODMAN: Congressman Nadler, I want to ask you about impeaching the President. Now, I know people are going say, “What do you mean? He’s leaving office. Vice President Cheney, he’s leaving office. Why would you impeach?” But you can impeach these men after they leave office, and why would you?

REP. JERROLD NADLER: Well, I don’t think it makes sense to do so. But it’s technically probably possible — it’s never been tested — because the Constitution says that someone who’s impeached, the punishment shall extend only to a removal from office, which is obviously irrelevant if they’re already out of office, or — and to disabling them from holding any offices, private or trust, under the United States. So Congress could decide to impeach somebody in order to prevent them from being elected or appointed to anything in the future.

Now, whether it makes sense to do that is another question. I, frankly, think that it’s a lot more important to hold people accountable in terms of the criminal law than to do that at this point and a lot more practical to do it, because an impeachment, number one, is politically not in the cards, and, number two, it would completely distract Congress as a whole, when it has some rather urgent tasks, like saving the world economy, in front of it.

AMY GOODMAN: Let’s talk about that, the world economy. Let’s start right here in New York or in this country, the global economic meltdown. You heard the headline about the lack of accountability of the banks, what they’re doing with this money. You’ve got the executive loophole, which is, now these big —- the CEOs can get bonuses at the end of the year, though that was not the intent originally. They’ve changed the language to allow this to happen. What are your thoughts?

REP. JERROLD NADLER: Well, my thoughts are, frankly, that this is the Bush administration acting in its usual disgusting way in subverting the intent of the law and not enforcing the law as it was intended. I’m sure that as soon as the Obama administration comes in, they’re goes to use the ample powers that the law gives the administration to govern the use of the funds to make sure that those abuses don’t occur. And it’s just unfortunate that we still had the Bush administration for the last four or five months.

And I don’t think Congress had much choice but to pass the legislation that we did. The economy is on the brink of an absolute catastrophe. I’ve been saying for six or seven months now that we’re in 1931. In 1931, a recession that started with the Crash of 1929 tipped into a fifteen-year depression. We are on the precipice of that. If we are very lucky and if we do everything very right from now, we will probably have a two— or three-year very bad recession. If we’re not very lucky or if we don’t do everything right, we could easily have a ten- or fifteen-year depression, a repeat of the 1930s.

And we have to take — pull out all the stops. We have to do a very large stimulus package, I think at least a trillion dollars over two years, to put aggregate demand into the economy. That’s not enough. We also have to take steps to restore aggregate demand after that occurs. This is the result of thirty years of deregulation and thirty years of redistribution of power to the very top, so that essentially 95 percent of the benefits of the doubling of the GDP that’s occurred since 1980 has gone to the top five percent of the population, which means that there’s a demand crisis. People don’t have enough money to buy things. And that occurred with regularity every twenty years before the New Deal, hasn’t happened since the New Deal, because the New Deal, we put in various protections which we’ve systematically dismantled since the Reagan era. We’ve got to put those protections or more modern versions of them back. We’ve got to pass the Employee Free Choice Act and get a robust union movement again, which is the only thing that guarantees that not everything goes to the top five percent and that you have a real middle class, and that guarantees that, with real middle class, that buying power in society is broadly enough distributed, so that you, in fact, don’t get into a deflationary spiral.

AMY GOODMAN: Did you know Bernard Madoff?

REP. JERROLD NADLER: No. Well, a friend of mine says that I did in the ’80s, that we served on a large — on the Metropolitan Council of the American Jewish Congress together. That was a body of sixty people. I have no memory of him from the ’80s.

AMY GOODMAN: And what about the regulation of the SEC, the Securities and Exchange Commission?

REP. JERROLD NADLER: Well, obviously, it was totally incompetent and inadequate. It’s got to be changed.

AMY GOODMAN: We just were listening to Vice President Cheney. One of the remarkable things he said was, well, as you pointed out, echoing back to Nixon — if people have seen Frost/Nixon, we just had Ron Howard on — that issue of, if a president does it, it’s not illegal.

REP. JERROLD NADLER: Well, that’s the definition of a monarch. We rebelled against that notion in 1776. And, in fact, it is just completely either ignorant or malevolent. It’s the antithesis of a democratic country. It’s the antithesis of the rule of law. The whole point of the way they drafted the Constitution was that they didn’t want the president to be an elected monarch. A president, anyone in this country, must be subject to the rule of law and not above it. The people are sovereign, not the president. And someone who says that if the president does it, it’s legal, betrays the Constitution and betrays the entire goal of American government, which is to have rule by the people, not by a king.

AMY GOODMAN: Well, I want to thank you very much for being with us.


AMY GOODMAN: Congress member Jerrold Nadler of New York.

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