The Problems with Judge Mukasey’s 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 for one described it as the 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 a prohibited 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. The Japanese soldiers were later prosecuted 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 have resorted to waterboarding, 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


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 Senate is not asking for Judge Mukasey to pass judgment on particular individuals, but to interpret the law as applied to known interrogation techniques. CIA or other officials should be put on notice that the use of waterboarding or other cruel interrogation techniques is illegal.


What Mukasey Said:

“’[W]aterboarding’ cannot be used by the United States Military because its use by the military would be a clear violation of the Detainee Treatment Act (DTA).” –October 30, response to written questions of Senator Lindsey Graham

Human Rights First’s Response:

The Detainee Treatment Act prohibits the “cruel, inhuman, or degrading treatment or punishment” of detainees in United States custody. It further provides for “uniform standards” of interrogation and limits interrogation techniques to those authorized by the Army Field Manual. Waterboarding is prohibited by the Army Field Manual. Judge Mukasey accurately states that the use of waterboarding by the U.S. Military would violate the Detainee Treatment Act. But he recognizes that this provision of the Detainee Treatment Act does not apply to the CIA and other government agencies.

It has been widely reported that waterboarding has been authorized for use in the CIA’s secret interrogation program. Brian Ross & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC News Online, Nov. 18, 2005 at If, as Judge Mukasey implies, the Detainee Treatment Act does not apply to the CIA, are CIA interrogators permitted to engage in waterboarding?

According to Judge Mukasey, in assessing the legality of waterboarding or other coercive techniques, he would apply a three-part test to determine whether these 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.

The August 1, 2002 memo argued that only interrogation techniques which caused death or pain equal to that associated with 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 states that all prior legal opinions – presumably including those that may have authorized specific interrogation techniques – remain sound. The fact that Judge Mukasey cites the 2004 conclusion that other Department of Justice legal opinions don’t have to change undermines his commitment to review all existing opinions on interrogation, suggesting that the results of such a review are preordained. It also implies that all techniques approved by the Department of Justice in the past are legal.

As stated above, it has been widely reported that waterboarding has been authorized for use in the CIA’s interrogation program. Human Rights First vehemently disagrees with Judge Mukasey’s refusal to apply the torture statute to waterboarding. Waterboarding is torture. Recently Human Rights First and Physicians for Human Rights released a report entitled Leave No Marks examining ten illegal interrogation techniques, including waterboarding. The report represents a critical collaboration between medical and legal researchers. The knowing infliction of “severe” or “serious” physical pain and suffering likely to be caused by each of these techniques used separately, or more commonly, in combination with one another, constitutes a violation of U.S. law barring “torture” and “cruel and inhumane treatment.”2. Cruel and Inhuman Treatment

What Judge Mukasey Said:

“The Fifth Amendment is likely most relevant to an inquiry under the DTA and MCA 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

Human Rights First’s Response:

In assessing whether waterboarding or other coercive interrogation techniques violate the “cruel, inhuman, or degrading treatment” standard, Judge Mukasey adopts the administration’s interpretation of the subjective “shocks the conscience” test. The administration’s version 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 torture or otherwise cruel interrogation techniques on a detainee believed to have crucial intelligence information. This interpretation blurs the line of prohibited conduct to the point where any cruel treatment may be justified if needed for intelligence purposes.

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

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 refuses to state whether the President can authorize a violation of Common Article 3 that does not rise to the level of a “grave breach.” Judge Mukasey’s refusal to state whether the President is bound by the humane treatment provisions of Common Article 3 deeply concerns Human Rights First. There should be nothing complicated about the President’s obligation to uphold the minimum standard of treatment under the Geneva Conventions. The U.S. military relies upon this standard. In addition, in interpreting U.S. treaty obligations in Hamdan, the Supreme Court did not make a distinction based on whether the treaty was self-executing.

4. Executive Order 13440

What Judge Mukasey Said:

“ 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:

In assessing the legality of a specific torture technique, Judge Mukasey states that he would have to 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 the meaning of Common Article 3 with respect to the CIA. It 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).

We are deeply troubled that Judge Mukasey has adopted the Bush administration’s position on interrogation techniques as it is outlined in Executive Order 13440. The order cannot be reconciled with America’s humane treatment obligations under Common Article 3. In fact, the order 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 intend to gather intelligence or prevent future attacks. P.X. Kelly and Robert F. Turner, The Washington Post, Thursday, July 26, 2007.


Published on November 2, 2007


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