Questioner Makes Candidates Address Torture in CNN/YouTube Debate

In tonight's CNN/YouTube debate, a questioner from Seattle made the Republican candidates address torture when he asked this question:

Andrew Jones: Hello, gentlemen. I'm Andrew, and I'm a college student from Seattle, Washington. Recently, Senator McCain has come out strongly against using waterboarding as an instrument of interrogation. My question for the rest of you is, considering that Mr. McCain is the only one with any firsthand knowledge on the subject, how can those of you sharing the stage with him disagree with his position?

The debate transcript is here. Watch the question here:

Will Putting an End to Secret Prisons and Kidnapping Become a Campaign Issue?

In and excellent piece in the Village Voice, Nat Hentoff explains the current use of "extraordinary rendition," secret prisons, and criminal kidnapping by the United States government and asks the question: "Will any candidate for the presidency in 2008 be able to turn us around?"

So far, the issue has not been central to the presidential campaigns. Sign the petition to help make that change.

Mary Jo White Gets It Wrong on Waterboarding

Here's HRF President Michael Posner's response to Mary Jo White's opinion piece in USA Today. Posner explains why White is wrong in claiming that waterboarding is not clearly illegal.

In her defense of Attorney General Mukasey (no easy answers to al Qaeda threat- Nov 14) Mary Jo White argues it is not clear whether waterboarding is illegal. This assertion is directly contradicted by five retired military Judge Advocates General who wrote to Senators last week that “Waterboarding is inhumane, it is torture and it is illegal.” Used since the Spanish Inquisition, this is a form of torture under which a detainee is strapped to a board, blindfolded and then subjected to drowning. Waterboarding became a focal point in Judge Mukasey’s confirmation hearings, a way into the broader issue of what constitutes official cruelty by the CIA. It is torture because it violates both a federal torture statute and an international treaty to which the SA is a party. It violates the Detainee Treatment Act of 2005 that bars all US officials from engaging in cruel, inhuman or degrading actions. And it flies in
the face of the humane treatment provision of the Geneva Conventions, which the
Supreme Court has held applies to all US officials. Last year the US Army produced a field manual on interrogations that makes US obligations crystal clear. It is time for Congress to compel all government agencies, including the CIA, to bar all forms of official cruelty.

Would President Reagan condone torture?

Philip Giraldi, a former CIA counter-terrorism expert and current fellow at the American Conservative Defense Alliance says the answer to that question is a clear no. In “Inside Track: Torture is Not a Republican Value” (National Interest online) Giraldi makes the case for why conservative Republicans should oppose torture.

Reagan won the Cold War without torturing anyone. Reagan would understand that torture dehumanizes and brutalizes the men and women who carry it out, the organization that orders it and the government that permits it.

Saddam Hussein Brought to Tears by a Torture-Free Interrogation

The New York Daily News reviews a book that details how Saddam Hussein was made to confess to his crimes -- and brought to tears -- without torture.

"When we were saying bye, [Saddam Hussein] started to tear up," [FBI interrogator George] Piro recalled in the new book "The Terrorist Watch: Inside the Desperate Race to Stop the Next Attack."

The self-effacing G-man was hardly surprised - he had spent nearly a year carefully becoming Saddam's best friend in a successful ploy to extract confessions from the notorious brute. Piro's inside account of spending up to seven hours a day, every day, for eight months with Saddam is revealed in the new book by journalist Ronald Kessler.

Piro, then 36, began grilling Saddam in early 2004.

Instead of bright lights, loud music or waterboarding, the Beirut-born Arabic speaker - who immigrated to the U.S. as a teen - built a rapport with the dictator nabbed in a spider hole. He treated him with respect and took care of his every need.

. . .

They talked about sports and Saddam's pulp novels, and soon the despot was
spilling his guts over thick cups of Folger's.

An Up-Close Look at the Khadr Case from Guantanamo

Here's HRF attorney Devon Chaffee writing in from Guantanamo Bay on Thursday:

Yesterday morning I observed what was expected to be the status and jurisdictional determination, and then the arraignment, in the trial of Omar Khadr at Guantanamo Bay, Cuba. Instead, the day’s proceedings accomplished neither of these steps but did amplify two of the most alarming concerns about the military commissions system: will the military judges — in this case Col. Peter E. Brownback — be impartial as the trials move forward, and will the defense have sufficient access to resources and evidence?

No trial date was set and the question which participants (most certainly the prosecution) and observers had expected to be resolved before coming to Guantanamo — whether or not Mr. Khadr would be determined to be an “unlawful enemy combatant” subject to the jurisdiction of the military commissions — was set aside for the time being.

When Judges Take Heat

When it comes to making decisions in the cases before them, judges should not have to take any heat. Independence of the decision maker is an essential component of any fair trial procedure; federal judges are appointed for life terms for precisely this reason — to insulate them from undue political influence. Unfortunately, Judge Brownback’s answers to questions from defense counsel Lieutenant Commander William Kuebler yesterday only fuels concerns about the ability of the military commission judges to act independently.

Judge Brownback admitted to having said that he had “taken a lot of heat” for dismissing the Khadr case in June, heat which he suggested came from the Department of Defense — the agency that maintains him on active duty and employs him in his capacity as a military commission judge. Judge Brownback said that he had read newspaper articles in which a Department of Defense spokesperson called his decision an issue of mere semantics. He also stated he was aware that the former chief military commission prosecutor, Colonel Morris Davis, had been quoted in the media speaking out about pressure he had felt to get the military commissions going. That military commission judges and other commission officials are made to feel pressure from senior Defense Department officials about their actions and decisions that displease the Department is highly troubling.

In further response to defense counsel questions, Judge Brownback took a creative approach to legal interpretation. He stated that in June 2006 the Supreme Court in Hamdan v. Rumsfeld did not hold that the previous military commissions system was illegal. This assertion shocked many courtroom observers who thought the message in the landmark Hamdan decision was clear: the Court struck down the original military commissions system because the system was illegal under U.S. statutory law and Common Article 3 of the Geneva Conventions. Judge Brownback’s unwillingness to recognize this holding is not entirely unexpected; for him to have said otherwise would be to admit that for two years commission judges had served as cogs in illegitimate, illegal proceedings.

The judge’s troubling answers came during voir dire, a process by which counsel for both parties are allowed to ask the judge questions and, on the basis of his answers, challenge if appropriate the judge’s impartiality. While Judge Brownback denied the challenge to his impartiality, his answers to the defense counsel’s questions underscored long-standing concerns by observers and even many participants about the independence of the judges and other decision makers in the military commissions system — concerns that have been present since the commissions were first established.

The Evidence Shell Game?

Within an hour after the hearing ended, Lieutenant Commander Kuebler announced to the press that the defense recently had learned of evidence that could help prove that Mr. Khadr is not an unlawful enemy combatant — evidence which Lieutenant Commander Kuebler stated the U.S. government had long been aware. This announcement possibly related to defense complaints during the hearing that an FBI agent in Guantanamo had refused the defense’s request for a deposition, and it illustrated Judge Brownback’s recognition of the continuing problems faced by the defense due to lack of investigative assistance and access to intelligence analysts.

Problems experienced by the defense in accessing evidence and resources appear to have contributed to the defense’s decision not to challenge yesterday the jurisdiction of the military commission. Such a challenge would have required the defense to overcome the evidence the prosecution was prepared to put on that Mr. Khadr was an unlawful enemy combatant. Lieutenant Commander Kuebler repeatedly explained, and Judge Brownback recognized, that the defense was not conceding Mr. Khadr’s status as an unlawful enemy combatant. Judge Brownback made clear that the defense could present a motion to challenge the court’s jurisdiction at a future point in the proceedings.

The Debate over Official Cruelty Is Far from Over

There have been lots of recent developments on torture and interrogation. In addition to the Senate confirming Judge Michael Mukasey last night as Attorney General in one of the narrowest margins in recent history, the Pentagon barred a Marine Corps lawyer from testifying before Congress about how the government’s use of abusive interrogation techniques had scuttled his case against an alleged terrorist. Meanwhile, other experts who testified yesterday left no doubt that waterboarding is a form of torture. In fact, there’s nothing “simulated” about the drowning experience of those subjected to it.

Clearly, the confirmation of Judge Mukasey as Attorney General is not the last word in the debate over torture and official cruelty.

Waterboardin', USA

Harry Shearer has released "Waterboardin', USA", a song featuring such lines as, "Well, it's nothing like surfin, cause you can't get off if you want to," and, "If the tables were turned, we'd feel really burned, But let's go waterboarding USA." It's like the Beach Boys. Only different.

The video and a MP3 download are available here.

Human Rights First Attorney to Observe 'Dismal' Military Commissions Trials at Guantanamo

Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba. Devon Chaffee – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes. Read her initial post:

November 7, 2007

The Troubling Track Record of Military Commissions

Today I am traveling to Guantanamo Bay to observe proceedings scheduled for Thursday in the military commission trial of Canadian citizen Omar Khadr. Mr. Khadr has been detained without trial since he was first brought to Guantanamo Bay in July 2002. At the time he was 15 years old. He is now 21.

The track record of the military commission trials at Guantanamo up to this point is far from encouraging. In fact it’s down right dismal. After three years, the military commission system — which allows for coerced evidence and provides for far fewer safeguards than a U.S. federal or state criminal prosecution, or even a military court martial proceeding — has met with little success under any standard of measurement.

Since established in August 2004, the commissions have yet to conduct a single trial and have achieved only one conviction – against the Australian David Hicks. Mr. Hicks accepted a guilty plea in March, was given a reduced sentenced of 9 months, and will be released from Australian custody in December. My colleague Hina Shamsi, who observed the proceeding at which Mr. Hicks pled guilty, described the process as "a loss for anyone who hoped that American justice, as we traditionally understand it, would show itself in the military commissions hearing room."

Meanwhile, approximately 320 individuals remaining at Guantanamo — none of whom have ever been found guilty of any crime, and almost none of whom have even been charged with any crime — continue to face indefinite detention without trial. While the government reportedly wants to try about one-fourth of those — 80 detainees in total — only three detainees are currently charged with crimes. And all detainees — including those who will never be tried and even those who are tried and found not guilty — face indefinite detention, according to the government.

The Question at Hand

Thursday’s hearing is mostly to determine whether Mr. Khadr is an “unlawful enemy combatant” and therefore subject to trial by military commission. Last June, military commission judge Col. Peter E. Brownback threw out the Khadr case because Mr. Khadr had not been designated an “unlawful enemy combatant.” The Department of Defense, through a process known as a Combatant Status Review Tribunal, had only determined that Mr. Khadr was an “enemy combatant.” But the U.S. government appealed to a then non-existent special military appeals court — the Court of Military Commission Review (CMCR) — which, after it was composed, held in its first decision ever that the commission judges had the power themselves to determine whether an individual was an “unlawful enemy combatant.”

Mr. Khadr has appealed the CMCR decision to the D.C. Circuit Court of Appeals, but on Tuesday the appellate court refused Mr. Khadr’s plea to block the military commission proceedings until that appeal is decided. In a motion to dismiss the appeal, the government argues that the D.C. Circuit has no jurisdiction to hear appeals until the military commission trial is completed.

Human Rights First has previously criticized the Military Commissions Act's definition of "unlawful enemy combatant" — the definition that the judge will apply in the Khadr case — as being so broad as to include civilians with no real connection to any armed conflict. If the judge determines this week that Mr. Khadr is an “unlawful enemy combatant” he will face charges of murder and attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism and spying. He thus would become the first individual to ever actually stand trial in a military commissions system that has thus far proven entirely incapable of providing any semblance of justice.

In addition to the overly broad definition of “enemy combatant” — which determines who can be subject to military commission trials — and the various ways in which these military commissions will violate international standards for fair trial, there are fundamental problems with the charges themselves. While murder and attempted murder in violation of the laws of war may be legitimate crimes, Mr. Khadr is charged with killing a U.S. combatant, an act that actually is not a violation of the laws of war. In addition, the crimes of conspiracy, spying and material support for terrorism are not war crimes and should be charged, if at all, in a regular criminal court. (The U.S. Supreme Court has already noted that conspiracy is not a crime under the laws of war.) Like other military commission crimes that are not also traditional law of war crimes, conspiracy cannot be the basis for a criminal charge where, like in the Khadr case, the conduct in question occurred before the law came into effect.

Finally, we must return to the fact that Omar Khadr was a child when first detained. International law and sound policy both emphasize the need to rehabilitate, rather than punish, child soldiers. Of all the people in Guantanamo who are actually suspected of hostile acts, Omar Khadr is possibly the worst choice for prosecution.

Generals Agree: Waterboarding Is Torture

From the New York Times . . .

November 5, 2007,
Generals Agree: Waterboarding Is Torture

By The Editorial Board

President Bush’s nominee for Attorney General, Michael Mukasey, has had trouble deciding that waterboarding — a method of interrogation that is designed to make a prisoner believe that he is drowning — is torture.

It isn’t a trick question.

Two retired generals and two retired admirals have written a letter (pdf) to Patrick Leahy, chairman of the Senate Judiciary Committee, stating that “waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise — or even to give credence to such a suggestion — represents both an affront to the law and to the core values of our nation.”

The Judiciary Committee is scheduled to vote on Mr. Mukasey’s nomination tomorrow. With Charles Schumer, Democrat of New York, and Dianne Feinstein, Democrat of California, declaring their intention to vote for Mr. Mukasey, the nomination is expected to be sent to the full Senate with an favorable committee report.

A Low Point for Diplomacy: State Department Lawyer Won't Condemn Waterboarding

Now the State Department's top lawyer is sounding like Judge Mukasey and the rest of the torture crowd. Looks like he's subject to the Bush Administration's torture litmus test, too. Here's the report from The Guardian:

The top legal adviser within the US state department, who counsels the secretary of state, Condoleezza Rice, on international law, has declined to rule out the use of the interrogation technique known as waterboarding even if it were applied by foreign intelligence services on US citizens.

And here's the actual quote from John Bellinger on the subject of waterboarding:

"Well, I'm not willing to include it or exclude it. Our justice department has concluded that we just don't want to get involved in abstract discussions."

So, the Justice Department has decided it would rather not talk about waterboarding and the rest of the Administration falls into line, right down to the man whose job it is to interpret international law for the Secretary of State and the country. Note that these remarks were made while Bellinger was in the U.K. and they are making news there. There should be no doubt that the Bush Administration's flawed policies on torture are costing us our reputation, even with one of our closest allies. This is certainly not a great day for American diplomacy.

Waterboarding Used to Be a Crime

Despite what defenders of the Bush Administration's torture policies would have you believe, there is no question that waterboarding is torture. For a look at the history of how the U.S. used to hold torturers accountable, check out this excellent piece by Judge Evan Wallach in yesterday's Washington Post.

The Problems with Judge Mukasey's Positions on Torture and Official Cruelty

WATERBOARDING: HYPOTHETICAL OR REAL?

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 http://abcnews.go.com/WNT/Investigation/story?id=1322866.

ADDRESSING PAST ABUSES

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.

JUDGE MUKASEY’S ANALYSIS OF WATERBOARDING AND OTHER COERCIVE INTERROGATION TECHNIQUES

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 http://abcnews.go.com/WNT/Investigation/story?id=1322866. 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.

More on the Bush Administration's Torture Litmus Test

Today's L.A. Times chronicles the growing opposition to the Mukasey nomination among Judicary Committe Democrats. The New York Times tries to make the case that Judge Mukasey's inability to come out and say that waterboarding is illegal stems from his concern that those who have engaged in the practice will be prosecuted but, over at Balkinization, that reasoning is picked apart. Jack Balkin points out that American operatives have already been granted immunity by Congress and have the protection of various immunities. What's really behind Mukasey's intransigence on waterboarding? Here's as apt a summary of the Bush Administration's torture litmus test as any I've read:

The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.