Judge Mukasey Gives Troubling Answers on Torture

In his confirmation hearing today, Judge Mukasey made several remarks that will give pause to those who want to bring an end to U.S. policies authorizing torture and cruel treatment.

Most alarmingly, Judge Mukasey refused to say that the humane treatment provisions of Common Article 3 of the Geneva Conventions apply to every prisoner in U.S. custody – including in the custody of the C.I.A. Common Article 3 prohibits a range of cruel practices, including waterboarding. Mukasey’s assertion that some techniques beyond those which are permitted by the Army Field Manual may be used implies that forms of coercive interrogation which violate Common Article 3 may be practiced by government agencies, including the C.I.A.

In addition, despite repeated questioning, Judge Mukasey declined to acknowledge that waterboarding is a form of torture prohibited by law. Although he was asked by Senators Durbin, Leahy, and Whitehouse to elaborate on his views on waterboarding, Judge Mukasey only said, “If waterboarding is torture, then waterboarding is not constitutional.” This drew a rebuke from Sen. Whitehouse, who accused him of hedging.

The issue is clear: waterboarding is a form of coercion which violates U.S. legal obligations under Common Article 3 of the Geneva Conventions. It is illegal for anyone acting under the color of US law to engage in this practice. (In today’s questioning, Senator Durbin outlined the history of how the United States prosecuted as war criminals those who used this technique in past conflicts. We’ll post the transcript when it’s available. For more, see the Human Rights First and Physicians for Human Rights report explaining why “enhanced” interrogation techniques amount to torture, here.)

Of further concern is Judge Mukasey’s suggestion that the current situation faced by the country might have rendered the experience of the U.S. military – the organization in our country that actually has a long history of detaining and interrogating prisoners – irrelevant. Senator Durbin had questioned Judge Mukasey on whether he believed that a series of specific techniques, including waterboarding, amount to torture. Durbin read the testimony of the top lawyers of every branch of the armed services who clearly stated that specific techniques that reportedly are in use as part of the “enhanced” interrogation program violate the Geneva Conventions. Mukasey replied that, while he wouldn’t question the determination of the JAG officers about what actions violate the Geneva Conventions, the experience of the JAGs in fighting past conflicts differs from the experience of the United States today, since we currently face unlawful enemy combatants.

Many would take issue with Judge Mukasey’s suggestion that the fight against al-Qaeda necessitates our abandoning the principles that we were able to follow to success in World War II, and other conflicts. And, the Supreme Court ruled in Hamdan vs. Rumsfeld that even enemy combatants held in the fight against terrorism are entitled to the basic protections of Common Article 3 of the Geneva Conventions. Judge Mukasey’s troubling assertion that the experience of the JAGs is outdated doesn’t change the law.

Another troubling aspect of Judge Mukasey’s testimony today was his claim that he didn’t think the Supreme Court’s ruling in Hamdan reached interrogation techniques.

In Hamdan, the Supreme Court found that Common Article 3 of the Geneva Conventions applies to persons detained in the armed conflict with Al Qaeda and the Taliban. In fact, in response to Hamdan, the Department of Defense issued a directive requiring that all DoD practices and procedures, including those affecting detainee treatment and interrogation, be reviewed to ensure that compliance with Common Article 3.

(For a more detailed analysis, Professor Marty Lederman of Georgetown University has called “implausible” the suggestion that the holding in Hamdan might not reach interrogations, writing: “The Court’s holding in section VI-D-ii of the majority opinion is that the conflict with Al Qaeda is “not of an international character,” as that phrase is understood in Common Article 3, and that therefore Common Article 3 is, in Justice Kennedy’s words, “binding law” that applies to the conflict against Al Qaeda. This holding necessarily applies to Common Article 3 as a whole, and therefore it implicates subsections 1(a) and 1(c) of CA3; there’s no theory of severability on which that interpretation could be limited to subsection 1(d) — so that parts of CA3 are applicable to this conflict, but others are not.”)

Judge Mukasey has been outspoken in his opposition to torture, but hard to pin down on what techniques he thinks actually constitute torture. If he is confirmed as the next Attorney General, which seems likely at this point in time, it’s going to be up to Americans to continue to push for changes in policy that put an end to torture and cruel treatment once and for all. Take the first step. Sign the Elect to End Torture ’08 petition.


Published on October 18, 2007


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