Week 532 – Sunday,2007-11-04: National Security and the Law
The Mirror, Vol. 11, No. 532
During the past week, traveling in the United States of America, I was asked repeatedly about the Khmer Rouge trial – how is it going – why did it take so long to start – how do the main surviving leaders react to the trial? And the hope was expressed, similar to what the US Ambassador to Cambodia is quoted to have said: that the tribunal must be independent, transparent, and fair.
I tried to respond on the basis what is known through the press – especially also how the former leadership sees their responsibility. I related the fact that, for example, both Khiev Samphan, as the former Head of State, as well as Nuon Chea, the “Brother number two” in the hierarchy of the party, claim not to have know about the mass tortures and killings, and that they acted anyway during a time when they considered Cambodia to be under a tremendous threat from a perceived external enemy: Vietnam. These two reasons seemd – for them – to justify extraordinary measures taken by the Khmer Rouge government.
It was a strange coincidence that at the same time the public in the USA was following the discussions relating to the appointment of Michael Mukasey as Attorney General – the Minister of Justice. Such ministerial positions are filled in the United States of America in response to suggestions by the President, but the appointment is dependent on a confirmation by the House of Representatives and the Senate. A new appointment became necessary, because the former Attorney General resigned after allegations against his performance were raised: that he had let political considerations guide some of his decisions about whom to appoint and whom do dismiss as judges.
During the hearings in the House of Representatives, Michael Mukasey was asked whether he considers waterboarding to be torture. Waterboarding – a procedure applied during the interrogation of persons suspected to be related to hostile activities, and to have knowledge about hostile activities, where the suspect, during interrogation, is pushed under water so that he or she may fear to drown – and then disclose some secret information.
The answer of Michael Mukasey was that if waterboarding were torture, it would be prohibited. He was not prepared to say that waterboarding is torture. As a consequence, it is not sure whether he will get the approval to be appointed as Attorney General.
President Bush continues to strongly support the candidate he proposed, who has a long career as a lawyer and as a judge. Michael Mukasey justified his refusal to answer clearly, claiming that he does not know about this procedure of waterboarding. And President Bush criticized the way in which the interrogation of the candidate was conducted, saying that the nominee should not be asked about techniques on which he has not been briefed. He is reported to have said that the delay in appointing an Attorney General will damage the national security in the face of terrorist threats, and he also refused to answer himself whether the United Stated employs waterboarding, saying I’m not going to talk about techniques. There’s an enemy out there.”
It is surprising that a person with a long history of high level background in the legal field says that he does not know whether waterboarding is torture. This form of almost killing a suspect in interrogation has been used in Europe in the Middle Ages, it is reported that it has been used by the political police of Nazi Germany, and also by Japanese agents during the time of the Second World War.
Vann Nath, a survivor of the Tuol Sleng torture center in Phnom Penh, who painted pictures about what happened to prisoners being interrogated, depicted also waterboarding as one of the torture techniques used during Khmer Rouge time.
I will be a crucially painful to see how those accused in the Khmer Rouge Trial will deal with the many documents presented by the Documentation Center of Cambodia, pointing to the fact that they knew and they agreed with what happened during their time, holding high responsibility in the state. And to what extent the judges will be prepared to weigh their arguments, that they acted to protect the country which was under threat from its enemies.