Congress, stand together against torture — vote down judicial pick

More than 10 years ago, I was proud to be a congressional staff member and work with both Republicans and Democrats as they passed legislation to ban torture and condemned legal memos by the Office of Legal Counsel (OLC) that sought to justify such conduct.

When President Trump suggested in recent years that he would prefer to “broaden” U.S. law to allow waterboarding and other forms of torture, Republicans like Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) joined Democrats in strongly resisting such changes. In fact, McCain, joined in one case by Sen. Rand Paul (R-Ky.), has voted against several Trump nominees for executive branch positions who worked in OLC and participated in writing or reviewing pro-torture legal memos. McCain has been crystal clear about the reason for his opposition:

“I will not support any nominee who justified the use of torture by Americans.”  

Now that Trump has nominated someone who worked on the torture memos for a lifetime seat on our federal courts, the question is: Will Republicans and Democrats once again stand up against torture?

{mosads}Howard Nielson, who worked as a deputy assistant attorney general in OLC from 2003 to 2005, is being considered for a lifetime seat on the U.S. District Court for the District of Utah. During Nielson’s time at OLC, the office saw a lot of activity related to “enhanced interrogation techniques,” waterboarding, and other forms of torture, including legal memoranda by the then-heads of OLC Stephen Bradbury and Daniel Levin that authorized such human rights abuses before the memos were ultimately revoked in 2009.  

At his recent Senate hearing and in answers to written questions, Nielson stated that Levin and Bradbury had asked for his “input” on the memos and that he had “participated” in “the review process,” which included suggesting comments or revisions. Nielson declined to tell senators whether he personally agreed or disagreed with any of the advice in the memos, although he stated that he now believes waterboarding to be illegal.

Last year, senators faced a similar situation with Trump OLC nominee Steven Engel. Engel likewise explained that he had reviewed and commented on a 2007 memo by Bradbury on “enhanced interrogation techniques,” refusing to say whether he agreed or disagreed but stating that he now believes waterboarding is illegal. McCain voted against the nomination as a result, joined by 46 Democrats. Based on that standard, Republicans and Democrats who truly stand against torture should vote to deny a lifetime post to Nielson.

But there is more to Nielson’s record. After he left OLC, a number of questions continued to be raised about the office’s work, including with respect to memos authorizing waterboarding and “enhanced interrogation techniques.” A 2007 Washington Post editorial specifically referenced a 2005 memo as symbolic of how, under Nielson’s former boss Steven Bradbury, OLC had “deteriorated.” In response, Nielson co-wrote a letter to the editor criticizing the editorial as “unfair” and specifically praising Bradbury as a “careful lawyer” with “unimpeachable integrity” and “sound judgment.”

While Nielson now claims the letter was only a “general defense” of Bradbury, that is hard to square with the clear context of the Post’s pointed criticism of the torture memos. As McCain has recently noted, Bradbury “did a disservice to our nation” at OLC through the torture memos, contrary to the clear implication of Nielson’s letter.

In fact, Nielson himself wrote a memo while at OLC that three distinguished former military leaders and lawyers have criticized as having “interpreted the laws of war in a manner that could be read to justify torture.”

In his answers to written questions from the Senate Judiciary Committee, Nielson attempted to defend his memo as simply recording “oral advice” given to DOJ concerning a charging decision and noting that other provisions of U.S. law banned torture. But that defense misses the point. As Admirals Donald Guter and John D. Nelson and General David R. Irvine explained, the key concern was Nielson’s “flawed legal reasoning” in interpreting the Geneva Conventions themselves as placing persons captured and detained in Afghanistan outside the reach of the Fourth Geneva Convention and thus permitting their torture, a “dangerous” misinterpretation also reflected in other previous “torture memos.”

Prior to Nielson’s nomination, former Deputy to the U.S. Ambassador at Large for War Crimes Beth Van Shaack noted that the interpretation in Nielson’s memo would “virtually gut” the protections of the Fourth Geneva Convention. A more detailed analysis by Van Shaack concludes that Nielson’s memo was “an exercise in shoddy, results-oriented advocacy poorly masked as legal analysis.”

With a president who has criticized the Geneva Conventions and has called for waterboarding and worse, it is more important than ever that Republicans as well as Democrats continue to stand up against torture.

As McCain explained in voting against Bradbury’s nomination to an executive branch position, it is not that the individual in question is “unpatriotic or malevolent,” but that those who played a role in the “dark chapter of American history” of helping justify torture “should not be entrusted with the interests of the American people” by holding public office. And as the retired military leaders argued with regard to Mr. Nielson, officials who wrote or participated in memos justifying torture “should not be rewarded with lifetime judicial appointments.”

Nielson’s nomination is scheduled to be voted on in committee this Thursday. Republican and Democratic senators should once again take a principled stand on human rights issues and join together to defeat his nomination.

Elliot Mincberg is a senior fellow at People For the American Way.