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