Refusal to denounce torture techniques shows him unfit for attorney general
Michael Mukasey's appointment as attorney general should be rejected by the US Senate, because of Mukasey's unwillingness to state that "waterboarding" and other cruel, inhuman and degrading treatment is illegal, Human Rights Watch said.
In response to written questions from the Senate Judiciary Committee, Mukasey said Tuesday that waterboarding - mock drowning prosecuted by the United States as torture since 1902 - was "repugnant," but refused to call it illegal. "Mukasey seems to think he was nominated to be an ethics professor, rather than the nation's chief law enforcement officer," said Kenneth Roth, executive director at Human Rights Watch. "If he is still unsure whether the horrific practice of waterboarding is illegal, then he shouldn't be confirmed."
Meanwhile the US navy is being trained in torture tactics outlawed decades ago, according to Malcolm Nance, an advisor on terrorism to the US departments of Homeland Security, Special Operations and Intelligence, who has denounced the practice. He said waterboarding currently is used in training at the US Navy's Survival, Evasion, Resistance and Escape School in San Diego. Nance said he witnessed and supervised "hundreds" of waterboarding exercises. Although these last only a few minutes and take place under medical supervision, Nance concluded that "waterboarding is a torture technique – period."
The practice involves strapping the person being interrogated on to a board. Pints of water are forced into his lungs through a cloth covering his face, as the victim's mouth is forced open. Nance said its effect is slow-motion suffocation. Typically, a victim goes into hysterics on the board as water fills his lungs. "How much the victim is to drown," Nance wrote in the Small Wars Journal, "depends on the desired result and the obstinacy of the subject."
In Mukasey's 172-page response to Senate Judiciary committee questions, Mukasey refused to comment on the legality of specific interrogation techniques, claiming that it would be inappropriate to comment on them until he had been briefed by the Justice Department on "the actual facts and circumstances" of how they may have been used. But waterboarding is clearly unlawful regardless of the circumstances, Human Rights Watch noted.
"If Mukasey had been asked about the rack and thumbscrew, would he have said that it depends on the circumstances?" Roth asked. "The only reason to equivocate on waterboarding is to protect administration officials who authorized it from possible prosecution," Roth added.
Waterboarding has been prosecuted by US military courts as torture since the Spanish-American War. After World War II, US military commissions prosecuted and severely punished enemy soldiers for subjecting American prisoners to waterboarding. In its annual Country Reports on Human Rights Practices, the State Department has consistently condemned other countries for using the practice.
The Judge Advocates General (JAGs) of the US Army, Navy, Air Force and Marines agreed in August 2006 that waterboarding, which creates the perception of drowning, violates US law and the law of war - yet they're still teaching this technique at the navy school in San Diego. Several JAGs stated this technique would violate the US anti-torture statute, making it a felony offense. In addition, rather than rejecting certain interrogation techniques regardless of the circumstances, Mukasey adopted the administration's subjective "shocks the conscience" test to interpret the prohibition on cruel, inhuman, and degrading treatment. Under that legal test, the cruelty of an interrogation technique must be balanced against its purpose and in the Bush administration's view, little shocks the conscience if done in the name of fighting terrorism.
Mukasey suggested rules of interrogation adopted in 2006 by the US Army Field Manual are primarily designed for interrogation of prisoners of war, not terrorist suspects. But the Army Field Manual, which applies to all persons in military custody regardless of status, was adopted at a time when most people in US military custody were terrorist suspects who had been denied prisoner of war status. The Army Field Manual explicitly prohibits a range of abusive interrogation techniques, including waterboarding, exposure to
hot and cold and use of dogs.
Mukasey's answers were vague or unresponsive on many important questions. He failed to state clearly what -if any -interrogation techniques would violate a minimum standard of humane treatment, regardless of the interest at stake. He refused to say whether evidence obtained through coercion could legitimately be used in prosecuting a terrorist suspect and whether an American citizen detained on American soil could be indefinitely detained as an "enemy combatant." Mukasey also failed to answer what, if anything, he would do to oversee private contractors operating in Iraq and Afghanistan and whether he thought it legal to send terrorist suspects to countries that regularly engage in torture if the US were provided "diplomatic assurances," unenforceable promises of humane treatment.
"How can the government be expected to abide by the rule of law if its chief law enforcement officer won't even say what the law is?" said Roth. "Mukasey provided evasions, not answers, to the most pressing issues facing the Justice Department. He should not be confirmed as attorney general."