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Home / 2008 / 02 / 01 / Fact Check: Attorney General Mukasey and Waterboarding
February 01, 2008

Fact Check: Attorney General Mukasey and Waterboarding

The Attorney General's January 30 Testimony before the Senate Judiciary Committee: Mukasey’s Statements on Waterboarding and other Coercive Interrogation Techniques, and Human Rights First’s Responses

On Wednesday January 30, 2008, Attorney General Michael Mukasey appeared before the Senate Judiciary Committee. This was his first appearance before the committee since his confirmation hearings in October 2007. Click here to read a transcript of the hearing.
Once again, as he had during his confirmation hearing, Mr. Mukasey refused to state a clear position on the legality of waterboarding. (Click here to read Human Rights First’s press statement on his position.) He also refused to identify the other so-called “enhanced” interrogation techniques the CIA is using or his analysis of their legality. He simply and broadly assured the committee that they are all legal.

And as for the scope of the Justice Department’s investigation into the destruction of CIA interrogation videotapes, Mr. Mukasey refused to offer any reason why the investigation he has authorized should be limited in scope merely to the legality of the destruction of the tapes and not include the much more serious issue of the legality of the conduct shown on those tapes. Click here to read Human Rights First’s press statement on the investigations.

Waterboarding

What Attorney General Mukasey said:

“If this were an easy question, I would not be reluctant to offer my views on this subject. But with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit waterboarding's use. But other circumstances would present a far closer question. Reasonable people can disagree and have disagreed about these matters.”

Human Rights First’s Response:

Waterboarding is torture and a felony under the federal torture statute, 18 U.S.C. § 234018 U.S.C. § 2340, et seq. This is an absolute standard, not dependent on circumstances. In 2006 the sitting senior uniformed lawyers of the military services testified before Congress unanimously and unambiguously that waterboarding is inhumane and illegal, and violates U.S. legal obligations under Common Article 3 of the Geneva Conventions. Their conclusion was reinforced by four retired Judge Advocates General who wrote in a November 2007 letter to the Senate Judiciary Committee:

“This is a critically important issue – but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation…. The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule – the law – has long been clear: 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.”

Congressional Views on Waterboarding

What Attorney General Mukasey said:

“You say that waterboarding is obviously torture…. This is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed within this chamber. During the debate on the Military Commissions Act, when some people thought that it was unnecessary, some people thought that it [the law] obviously barred waterboarding, other people thought that it was so broadly worded that it would allow anything, and there were expressions on both sides.”

Human Rights First’s response:

The primary sponsors of the Military Commissions Act, including Senators John Warner, Lindsay Graham and John McCain, explicitly stated that coercive techniques including waterboarding, inducing hypothermia, the use of dogs and other “enhance interrogation techniques” are prohibited-. Senator Warner said that these types of conduct are “grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill.” And Senator McCain said “The President and his subordinates are … bound to comply with Geneva. That is clear to me and all who have negotiated this legislation in good faith.... We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act but with all of our obligations under Common Article 3 of the Geneva Conventions.” Click here to read more about the Senate debate about the Military Commissions Act.

Second-Order Effects: The Impact of U.S. Interrogation Practices on the Safety of the U.S. Military

What Attorney General Mukasey said:

“Our military is not subjected to any dangers at all, and shouldn’t be subjected to any dangers at all, by anything I’ve said, or indeed that they’ve said. Our military fights in uniform, follows a recognized chain of command, doesn’t target civilians and is entitled to and should receive the protections of the Geneva Conventions.”

Human Rights First’s Response

Mr. Mukasey either ignores or fails to comprehend the importance of reciprocity to the observation and enforcement of the law of war. Common Article 3 of the Geneva Conventions prescribes that “in all circumstances” detainees are to be “treated humanely.” It prohibits cruel treatment and torture, outrages upon personal dignity and humiliating and degrading treatment. This standard does not depend on whether a detainee was wearing a uniform, following a recognized chain of command or any other factor. It applies to every detainee in all circumstances. The U.S. Supreme Court affirmed this commitment in Hamdan v. Rumsfeld in 2006, holding that Common Article 3 binds the U.S. government in its treatment of all detainees captured during armed conflict. Click here to read more about this case. The U.S. military adheres to this broad standard in large part because it believes that the observation of humane treatment standards by U.S. government agencies – civilian as well as military – thereby promotes humane treatment of U.S. personnel when they are detained in combat. But when the CIA uses “enhanced interrogation techniques” that violate this standard, their actions inevitably subject members of the U.S. military to greater danger. As 49 senior retired U.S. military leaders said when Congress was considering this question, “We have people deployed right now in theaters where Common Article 3 is the only source of legal protection should they be captured. If we allow that standard to be eroded, we put their safety at greater risk.” Click here to read Human Rights First press statement and the full letter.

The Justice Department Investigation of the CIA’s Destruction of Interrogation Videotapes

What Attorney General Mukasey said:

“When it comes to past conduct, one of the many questions involving past conduct, in addition to what was done is, what authorizations were given, what authorizations were reasonably relied on?.... I don’t start an investigation out of curiosity. I start an investigation out of some indication that somebody might have had an improper authorization. I have no such indication now.”

Human Rights First’s Response:

Mr. Mukasey’s framework for analyzing the potential criminality of past conduct omits the most critical element: the law. Apart from assessing what was done and what authorizations were given and reasonably relied upon, any serious inquiry into the legality of past conduct must apply the applicable law to “what was done.” Thus while it is of course relevant to know whether there is “some indication that somebody might have had an improper authorization,” the much more central inquiry must be whether there is some indication that somebody might have broken a law. Mr. Mukasey rightly noted that there actually is a very “low bar” for beginning a criminal investigation. He went on to say that a criminal investigation should be undertaken when “that preliminary inquiry show[s] some reason – some reason – to believe that some statute may have been violated, which is a very low standard – it's well below probable cause.” But he could not be more wrong to characterize the interpretation and application of the relevant statutes as having “only tangentially” to do with assessing the need for a criminal investigation – an approach that is fundamentally contrary to the principle of the Rule of Law.

There is more than “some indication” that the destruction of the tapes may have broken the law, given the panoply of outstanding lawful orders and requests to preserve and produce records of interrogation, by various courts, Congress and the 9/11 Commission before the tapes were destroyed. Likewise there is far more than merely “some indication” that cruel and coercive conduct by the CIA recorded on the tapes may have broken the Anti-Torture Act and other U.S. laws, even based only upon government admissions about those techniques. This is not to say that the CIA’s techniques definitely broke the law – that determination must await a criminal trial. But Mr. Mukasey’s suggestion that there is no indication that these enhanced techniques may have ever violated some statute is simply not credible.

The Attorney General’s Responsibility to Enforce the Law

What Attorney General Mukasey said:

“The question of whether waterboarding should be outlawed or shouldn’t be outlawed is a question on which other people [in government] own a substantial part of the answer. Notably, the people involved in gathering intelligence, using intelligence, processing intelligence, explaining our position abroad…. I’m now the Attorney General. And for me to take my personal reaction to something and put the authority of that office on the scale when I haven’t heard all of the things I’ve told you I think I need to hear is, to me, a big mistake.”

Human Rights First’s Response:

During his confirmation hearings Attorney General Mukasey promised to review past and current interrogation practices and evaluate whether the CIA’s “enhanced interrogation techniques” comply with the law and whether, as a matter of law or policy, they should be changed. Separate and apart from the question of whether the Justice Department should investigate and prosecute past violations of the law, Mr. Mukasey continues to refuse to take a position on whether waterboarding and other “enhanced techniques” – like subjecting detainees to painful stress positions, sleep deprivation or hypothermia – are prohibited by law or should be prohibited as a matter of policy. After nearly three months in office, this position is simply indefensible. This is his job.