Questions about torture and war crimes prosecutions of U.S. officials have begun to surface around the debate on Michael Mukasey. The stakes were raised again in the Mukasey confirmation process when Senator Cardin submitted a single page of questions for Mukasey asking him whether he would, as Attorney General, order the Justice Department to prosecute those who have committed torture or have conspired to commit torture. Other written questions from senators also raise the possibility of criminal liability for U.S. officials, including:

1) “Is waterboarding torture?” sent by Senator Kennedy; and

2) [Ed.: heavily paraphrased]: “Do you agree with Senator Warner—primary author of the Military Commissions Act of 2006—that waterboarding and several other techniques are ‘clearly prohibited’ ‘grave breaches’ of Common Article 3 of the Geneva Conventions [Ed.: thereby making them war crimes under the War Crimes Act] that Congress intended to criminalize?” submitted by Senator Biden.

What makes Water(boarding)gate a scandal waiting to happen?

1) Waterboarding is the most brutal form of torture that the Bush administration has failed to disavow.

2) The administration has secretly authorized waterboarding at the highest levels of the Justice Department and possibly even the Oval Office.

3) Waterboarding has reportedly been practiced by U.S. agents within the past six years.

4) Torture is a U.S. federal crime and an international crime. In the context of wars, torture is a war crime under domestic and international law.

Therefore:

5) If Mukasey admits, as any honest lawyer must, that waterboarding is illegal, he—who is potentially the next Attorney General and would therefore be head prosecutor in the U.S.—would seemingly be conceding the possibility of very serious criminal liability for a large number of low-level and high-level U.S. officials, including cabinet members and potentially even the President and Vice President.

Mukasey himself has acknowledged his overaching concern over subjecting U.S. officials to criminal and other liability during his confirmation hearings. Asked by Senator Durbin at day two of his confirmation hearings about the legality of waterboarding and other torture techniques, Mukasey replied: “I don’t think that I can responsibly talk about any technique here, because of the very — I’m not going to discuss, and I should not — I’m sorry, I can’t discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar, when there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that” (emphasis added). Senator Durbin then reminded Mukasey, “This is not a congeniality contest.”

Indeed, congeniality is not the issue, accountability for torture is.

See also:

Water(boarding)gate Continues; Mukasey’s Confirmation Uncertain

Senators “Deeply Troubled” by Mukasey’s Refusal to Call Waterboarding Illegal

Dear Senate: Torture is Non-Negotiable

Harvard Law Faculty Letter Urges Senate to Call for Accountability on Waterboarding

The associated press is now reporting (Oct. 25) that Mukasey’s confirmation is uncertain. Both Senator Durbin and Leahy have said their confirmation votes depend upon Mukasey’s answers concerning waterboarding.  All ten Democrats on the Senate Judiciary Committee recently sent a letter to Mukasey asking him to answer whether waterboarding was illegal under U.S. law, including treaty obligations.  Other Senators, including Republicans such as Arlen Specter, are reportedly troubled too. Senator Specter also wrote Mukasey a letter asking for responses on a number of issues, including waterboarding.

Meanwhile, the legal ignorance appears to be contagious. Rudy Giuliani now says he doesn’t know whether waterboarding is torture, claiming “it depends on who does it,” among other astounding qualifications.

Democrats on the Senate Judiciary Committee sent a letter to Michael Mukasey expressing how “deeply troubled” they were at his “refusal to state unequivocally that waterboarding is illegal” on October 23, 2007. Asking Mukasey to clarify his answer as to whether waterboarding is “illegal under U.S. law, including treaty obligations,” the Senators noted that during the second panel on Mukasey’s confirmation, retired Rear Admiral John Hutson, former Navy Judge Advocate General and Dean of the Franklin Pierce Law Center, stated:

Other than, perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It’s a little disconcerting to hear now that we’re not quite sure where water-boarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

See the full Senate letter here (page 1, page 2, page 3). See also a Harvard Law School faculty letter on waterboarding sent to those same Senators prior to the confirmations hearings, which notes that waterboarding not only is illegal, it is criminal. Better than asking Mukasey whether he finds waterboarding illegal, the Senators should have asked him whether he thinks it criminal. There is still time to do so.

[UPDATE: Presidential candidate Bill Richardson has said Mukasey is not fit to be Attorney General unless he can say an unqualified “waterboarding is torture.”].

Do not expect the rule of law to flow from a man who waffles on waterboarding. Waterboarding is torture, and torture is antithetical to justice.

A nominee to be the head of the Justice Department should know that already. And yet, during his job interview, when asked about waterboarding Michael Mukasey claimed he didn’t know what that technique involved. That is either a lie or an early admission of incompetence. Worse still, after having waterboarding described to him, Mr. Mukasey refused to call it torture. That alone is enough to disqualify him for the job of Attorney General.

In fact, the Senate already rejected Steven Bradbury as the nominee to be the head of the Office of Legal Counsel in the Department of Justice for similar reasons. Senator Durbin long ago objected that “Mr. Bradbury refuses to repudiate un-American and inhumane tactics such as waterboarding, mock executions, and physically beating detainees.” In fact, the day before Mr. Mukasey’s hearing, Senators Durbin, Feingold, and Kennedy, formally requested President Bush to withdraw Mr. Bradbury’s nomination, stating, “Mr. Bradbury has refused to answer straightforward questions from Judiciary Committee members regarding torture.” And now, so has Mr. Mukasey refused the same. After his lack of candor before the Senate, Mr. Bradbury was later revealed to be the author of the two new secret torture memos, which the New York Times reported on two weeks ago. Is Mr. Mukasey, a budding torture relativist, heading down the same path?

How did we go as a nation from the insisting on the Trials of Nuremberg to opposing the International Criminal Court, from sponsoring the Universal Declaration of Human Rights to writing secret torture memos, from Ambassador Satchmo to Ambassador Bolton?

The President did not do it alone. The Court has been complacent, and the Congress complicit. A single Senator would have been enough to filibuster the Military Commissions Act of 2006, but none came forward. With the anniversary of that widely recognized stain on our legal tradition passing before us, the time for moral leadership is long overdue.

Who will step forward? The world is watching. Our children will learn who stood up and who stood down. No more “hedging.” Act now. Vote no. Stop torture.

A group of five Harvard Law School faculty members sent a letter to the Senate Judiciary Committee last Friday, October 12, 2007, urging Senators to demand that Mr. Mukasey–who faced his first confirmation hearing for the position of Attorney General this Wednesday, October 17, 2007–investigate and punish the authorization, ordering, and use of waterboarding, a technique the U.S. has a history of prosecuting as a war crime.

See the letter here.

For the most accurate coverage of the hearings so far, see Slate’s The Senate Runs into the Arms of Michael Mukasey.

Soldiers in Vietnam use the waterboarding technique on an uncooperative enemy suspect near Da Nang in 1968 to try to obtain information from him. (United Press International) [Washington Post article]