The Nomination of Michael Mukasey: His Positions on Torture and Official Cruelty



What Judge Mukasey Said:


“I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.” –October 18, testimony before the Senate Judiciary Committee

“I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical…” –October 30, letter to the Democratic members of the Senate Judiciary Committee


Human Rights First’s Response:


Judge Mukasey’s continued insistence that questions about waterboarding are “hypothetical” – and, as such, impossible for him to answer – is disingenuous.  Several senators have explained to him what waterboarding entails.  Senator Carl Levin described waterboarding to Judge Mukasey as a process by which interrogators “secure a detainee on a flat surface and slowly pour water onto the detainee’s face or onto a towel covering a detainee’s face in a manner that induces the perception by the detainee that he is/was drowning.” Senator Levin’s written questions to Judge Mukasey submitted on October 23.

Certainly Judge Mukasey does not need to know every detail of the CIA program or any other specific program to conclude that waterboarding violates the law.  The near-drowning of someone in order to extract information is an illegal act.  Waterboarding is one of the oldest forms of torture, dating back to the Spanish Inquisition.  The Khmer Rouge used it, and Japanese soldiers used it against civilian detainees and U.S. military POWs during World War II.  Japanese soldiers were later prosecuted for their conduct by U.S. military courts.

The problem is not that the senators’ questions about waterboarding were hypothetical, but rather that they were all too real.  Since 9/11, CIA interrogators are reported to have used waterboarding in interrogations, and U.S. officials have reportedly authorized the practice. Brian Ross & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC News Online, Nov. 18, 2005 at



Refusing to state clearly whether waterboarding is illegal, Judge Mukasey instead described a complex three-part test to determine whether this and other coercive techniques constitute (1) torture, (2) cruel, inhuman or degrading treatment, or (3) a violation of Common Article 3 of the Geneva Conventions.

1. The Torture Statute

What Judge Mukasey Said:

“I note that the Department of Justice published its interpretation of 18 U.S.C. 2340 in a December 30, 2004 memorandum to then-Deputy Attorney General James B. Comey, which superseded the memorandum of August 1, 2002 that I testified was a ‘mistake.’  I understand that the December 30, 2004 memorandum remains the Department’s prevailing interpretation of section 2340.  Although the December 30, 2004 memorandum to Mr. Comey does not discuss any specific techniques, it does state that ‘[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memo.’” –October 30, letter to the Democratic members of the Judiciary Committee

Human Rights First’s Response:

Judge Mukasey cites 18 U.S.C. 2340, the federal torture statute.  This statute defines torture as any behavior specifically intended to cause (a) severe physical pain or suffering, or (b) prolonged mental harm resulting from certain specified threats or acts.

Waterboarding is torture — and a felony under any good faith interpretation of 18 U.S.C. 2340. .  Recently Human Rights First and Physicians for Human Rights released a report entitled Leave No Marks:  Enhanced Interrogations and the Risk of Criminality, examining ten interrogation techniques, including waterboarding, reported to have been authorized for use by U.S. personnel.  The report, which represents a critical collaboration between medical and legal researchers, concludes that the knowing infliction of “severe” or “serious” physical pain and suffering likely to be caused by each of these techniques used separately or, as is more commonly the case, in combination with one another, constitutes a violation of U.S. law.  Doctors have documented that survivors of water torture in particular suffer from long lasting-trauma — such as panic attacks, depression and prolonged posttraumatic stress disorder — and, even more than a decade after the event, physical pain.

Judge Mukasey also refers to the August 1, 2002, Department of Justice memorandum, commonly known as the “torture memo,” which argued that only interrogation techniques which caused pain equivalent to that associated with death or organ failure constitute torture in violation of 18 U.S.C. 2340.  While the Department of Justice replaced the 2002 memorandum with a new memorandum in 2004, the new memorandum asserts that it does not change conclusions about the legality of techniques authorized under the prior memo.


2.  Cruel, Inhuman, and Degrading Treatment

What Judge Mukasey Said:

“The Fifth Amendment is likely most relevant to an inquiry under the DTA (Detainee Treatment Act) and MCA (Military Commissions Act) into the lawfulness of an interrogation technique…, and the Supreme Court has established the well-known ‘shocks the conscience’ test to determine whether particular government conduct is consistent with the Fifth Amendment’s due process guarantees…. As the Supreme Court has explained, a court first considers whether the conduct is ‘arbitrary in the constitutional sense,’ a test that asks whether the conduct is proportionate to the government interests involved.  In addition, the court must conduct an objective inquiry into whether the conduct at issue is ‘egregious’ or ‘outrageous’ in light of ‘traditional executive behavior and contemporary practices.’  This inquiry requires a review of executive practice so as to determine what the United States has traditionally considered to be out of bounds, and it makes clear that there are some acts that would be prohibited regardless of the surrounding circumstances.” –October 30, response to written questions of Senator Lindsey Graham (parentheticals added)

Human Rights First’s Response:

In assessing whether waterboarding or other coercive interrogation techniques violate the “cruel, inhuman, or degrading treatment” standard of the Detainee Treatment Act, Judge Mukasey adopts the administration’s subjective interpretation of the “shocks the conscience” test.  As described in public statements of administration officials, this interpretation of the “shocks the conscience” test evaluates conduct on a sliding scale, allowing for increasingly aggressive interrogation techniques as the government’s interest in a particular interrogation increases.  Thus, it explicitly leaves open the possibility of using cruel, inhuman or degrading interrogation methods on a detainee believed to have crucial intelligence information. This approach risks blurring the line of prohibited conduct to the point where even the most outrageous conduct might be justified if it were deemed necessary for intelligence purposes.  While Judge Mukasey recognizes that “there are some acts that would be prohibited regardless of the surrounding circumstances,” he fails to explain why he cannot state that waterboarding is in that category of acts that are inherently cruel and thus always prohibited. (October 30, letter to the Democratic members of the Judiciary Committee).

3.  Common Article 3

What Judge Mukasey Said:

“I am not aware of any authority that suggests that the President has the inherent constitutional authority to authorize the cruel, inhuman, or degrading treatment of detainees in violation of the McCain Amendment, nor that the President has the inherent authority to authorize acts proscribed as grave breaches of Common Article 3 under the Military Commissions Act of 2006.  The question whether the President otherwise may order a violation of Common Article 3, beyond grave breaches, is more complicated because a non-self executing treaty obligation stands on a different footing from an Act of Congress…” –October 30, response to written questions of Senator Lindsey Graham

“I would have to consider whether there would be a violation of the additional prohibitions imposed by Executive Order 13440, which includes a prohibition of willful and outrageous personal abuse inflicted for the purpose of humiliating and degrading the detainee.” –October 30, letter to the Democratic members of the Senate Judiciary Committee


Human Rights First’s Response:

Common Article 3 of the Geneva Conventions prescribes that “in all circumstances” detainees are to be “treated humanely.”  It prohibits violence to life and person including murder, mutilation, cruel treatment and torture, outrages upon personal dignity, and humiliating and degrading treatment.  The Supreme Court held in Hamdan v. Rumsfeld that Common Article 3 binds the United States in its treatment of all detainees captured during armed conflict.  From 1997-2006, the War Crimes Act criminalized all violations of Common Article 3.  However, in 2006, Congress passed the Military Commissions Act which narrowed the War Crimes Act so that it now criminalizes only “grave breaches” of Common Article 3, including “torture” and “cruel and inhuman treatment.”

Judge Mukasey acknowledges that the President cannot authorize “grave breaches” of Common Article 3 proscribed under the Military Commissions Act.  At the same time, however, he leaves open the door to the President authorizing a violation of Common Article 3 that does not rise to the level of a “grave breach.”  Judge Mukasey’s refusal to state clearly that the President is bound by the humane treatment provisions of Common Article 3 is extremely troubling.  There is nothing complicated about the President’s obligation to uphold the minimum standard of treatment of the Geneva Conventions:  the U.S. military relies upon this standard, and nothing in the Supreme Court’s Hamdan decision suggests any legitimate distinction among Common Article 3 obligations based on whether the treaty was self-executing.  Whether Common Article 3 is or is not self-executing – that is, whether it does or does not need to be implemented into domestic law by Congress before it can be invoked in a judicial proceeding by someone harmed as a result of a violation – is of no legal significance in determining the obligation of the executive branch to comply with the treaty provision.

In assessing the legality of specific torture techniques by the CIA and other civilian agencies, Judge Mukasey further states that he would consider in part whether the technique violates Executive Order 13440.  Executive Order 13440 was issued by the White House on July 20, 2007, in response to Congressional demand for the administration to spell out its interpretation of the meaning of Common Article 3.  The order states in part that the CIA satisfies its obligations under Common Article 3 as long as its interrogation techniques do not constitute “willful and outrageous acts of personal abuse done for the purpose of  humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.”  (Emphasis added.)

Executive Order 13440 cannot be reconciled with America’s humane treatment obligations under Common Article 3 and has been sharply criticized by many, including the American Bar Association, which found in August 2007 that the order is “inconsistent with U.S. obligations under Common Article 3.”A July 2007 Op-ed piece in the Washington Post, co-authored by P.X. Kelly, the former Commandant of the Marine Corps, rightly concludes that this provision gives the CIA “carte blanche to engage in ‘willful and outrageous acts of personal abuse’” as long as the interrogators can say that their specific intention was not to degrade or humiliate, but rather to gather intelligence.  P.X. Kelly and Robert F. Turner, The Washington Post, Thursday, July 26, 2007.



What Judge Mukasey Said:

“I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or on those charged with reviewing their conduct with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.” –October 30, letter to the Democratic members of the Senate Judiciary Committee

Human Rights First’s Response:

Judge Mukasey states that he does not want his responses to questions about waterboarding to place U.S. interrogators who may have used the practice in “personal legal jeopardy.”  The Senators were not asking for Judge Mukasey to pass judgment on particular individuals, but to interpret the law as applied to certain interrogation techniques in such a way as to give clear guidance to those conducting interrogations on behalf of the U.S. government.

When confronted with a similar situation – a survey showing a small percentage of U.S. troops in Iraq admitting to having mistreated noncombatants – General David Petraeus, Commander, Multi-National Force–Iraq, did not hedge or shrink from stating clearly what the law requires even though such a clear statement, to use Judge Mukasey’s approach, arguably placed troops under his command in “personal legal jeopardy.”  This is what General Petraeus said:

Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy.  They would be wrong.  Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary….

We are, indeed, warriors.  We train to kill our enemies.  We are engaged in combat, we must pursue the enemy relentlessly, and we must be violent at times.  What sets us apart from our enemies in this fight, however, is how we behave.  In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect.  While we are warriors, we are also all human beings.

CIA and other civilian officials operating on behalf of the U.S. government must similarly be put on notice that the use of waterboarding or other cruel interrogation techniques is illegal.  That interrogators in the field face stressful conditions makes it only more important, not less so, to articulate and enforce the law clearly and unambiguously.  Our soldiers in Iraq obviously operate in stressful conditions too; but as General Petraeus cautioned, “[W]e must not let these emotions lead us – or our comrades in arms – to commit hasty, illegal actions.”  We should expect at least as much understanding of the law, and clarity about it, from one who aspires to serve as Attorney General of the United States.


Published on November 2, 2007


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