The Bush Administration’s Litmus Test on Torture and Official Cruelty

Yesterday’s testimony by Attorney General nominee Judge Michael Mukasey raises the disturbing possibility that the Bush Administration has a new litmus test for an Attorney General: to be the top law enforcement official in the current Administration, a nominee must defend policies of official cruelty. Judge Mukasey’s repeated refusal to state that waterboarding is illegal was just one of several troubling statements from his confirmation hearing. Judge Mukasey’s unwillingness to stray from the White House line on torture and official cruelty suggests that this is an essential precondition to serving in senior policy-making positions in this administration.

Interrogation techniques

What Judge Mukasey said: “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.” (Senate Judiciary Committee Hearing, 10/18/07) Human Rights First’s Response:

It is troubling that Judge Mukasey showed more concern for officials’ careers than he did over the underlying issue of official cruelty.

• The fact that illegal techniques may have been “authorized” doesn’t make them legal. Just following orders is NOT a defense to torture.
• Making war crimes exempt from prosecution in the U.S. through narrow interpretations of the law or new statutes actually leaves American intelligence officers more vulnerable to overseas prosecutions. As a former CIA officer, Mitt Bearden, has written of the Military Commissions Act of 2006:

[T]he Bush administration, in its effort to immunize itself against future prosecution by changing the definition of war crimes for which U.S. government defendants may be prosecuted, has opened the door for such prosecutions outside the United States. Like a hacker at golf who blasts from fairway sand traps to knee-high rough, the administration is getting farther and farther “out of bounds.” The Military Commissions Act of 2006, railroaded through a rubber stamp Congress in September, 2006, and signed into law by the president in October, in effect, establishes that several categories of what were war crimes in the past, under Common Article 3 of the Geneva Conventions, can no longer be punished under U.S. law. This may have given some comfort to those who felt exposed to prosecution under existing U.S. law, but they should be wary of getting too complacent, particularly if they ever travel beyond the 12-mile limit of America’s continental shelf. The politicians may be marginally protected, as usual. But the men and women of the C.I.A. will be dangerously exposed and will have once again been left holding the bag. (Huffingtonpost.com, 10/9/07)

A “Different” Kind of Detainee What Judge Mukasey said: “What the experience is of people in the Judge Advocate General’s Corps who are enormously well-disciplined and very skilled, what that experience has been with captured soldiers, captured military people from enemies we fought in the past may very well be far different from the experience that we’re having with unlawful combatants who we face now. It’s a very different kind of person.” (Senate Judiciary Committee Hearing, 10/18/07) Human Rights First’s Response:

• Judge Mukasey seems to be suggesting that the President can ignore the law because the conflict in which we are currently engaged is “different”.
• Where does this line of reasoning end? If the conflict the U.S. faces now is “different” from past conflicts, does that mean the laws no longer apply? And who should decide these things?

The Supreme Court’s Hamdan Decision What Judge Mukasey said:

DURBIN: But I’m speaking to the Geneva Conventions and the judge advocates general said the techniques that I described to you violated Common Article 3, and this is the baseline test that applies to everyone, not just soldiers. And I believe that the Supreme Court agreed with that conclusion in Hamdan. Do you see that differently? MUKASEY: What part of Common Article 3 the Supreme Court found in Hamdan was applicable through, I believe through the Universal Code of Military Justice, unless I’m confusing my cases. I can’t, as I sit here, recall precisely what part of Article 3 the Supreme Court found applicable. I thought they were talking about the need for a trial and for an opportunity for a detainee to get a hearing. I did not think that that concerned interrogation techniques. (Senate Judiciary Committee Hearing, 10/18/07)

Human Rights First’s Response:

• The Supreme Court said unequivocally that Common Article 3 of the Geneva Conventions applies to the conflict, not merely that its provisions on fair trial requirements apply to the conflict.
• After the Hamdan decision, the Department of Defense applied Common Article 3 to all detentions through:
• a memo from Deputy Secretary of Defense Gordon England, “Application of Common Article 3 of the Geneva Conventions to Detainees in the Department of Defense, dated July 7, 2006
• the new DOD Directive 2310.01E on DOD’s detainee program, released on Sept. 6, 2006
• the new Army Field Manual on Human Intelligence Collector Operations, also released Sept. 6, 2006, which includes provisions on intelligence interrogation

Waterboarding What Judge Mukasey said:

SEN. SHELDON WHITEHOUSE, D-R.I.: Just to finish that thought: So is water-boarding constitutional? MUKASEY: I don’t know what’s involved in the technique. If water-boarding is torture, torture is not constitutional. WHITEHOUSE: If water-boarding is constitutional is a massive hedge. MUKASEY: No, I said, if it’s torture. I’m sorry. I said, if it’s torture. WHITEHOUSE: If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether water-boarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning — is that constitutional? MUKASEY: If it amounts to torture, it is not constitutional. WHITEHOUSE: I’m very disappointed in that answer. I think it is purely semantic. (Senate Judiciary Committee Hearing, 10/18/07)

Human Rights First’s Response: “Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history,” said retired Rear Adm. John D. Hutson, a former Navy lawyer and dean of Franklin Pierce Law Center in Concord, N.H. “It has been repudiated for centuries. It’s a little bit disconcerting to hear now that we’re not quite sure where waterboarding fits in the scheme of things.” (AP, 10/19/07) At the same time, the White House seemed pleased with the testimony: White House Spokesman Tony Fratto said Judge Mukasey “is not in a position to discuss interrogation techniques” that are classified, such as waterboarding. Mukasey “did not rule in or out any specific interrogation techniques,” Fratto said. (AP, 10/19/07) Why Judge Mukasey’s Definition of Torture Matters Here’s how President Bush defined torture at Wednesday’s press conference.

Q Thank you, sir. A simple question. THE PRESIDENT: Yes. It may require a simple answer. Q What’s your definition of the word “torture”? THE PRESIDENT: Of what? Q The word “torture.” What’s your definition? THE PRESIDENT: That’s defined in U.S. law, and we don’t torture. Q Can you give me your version of it, sir? THE PRESIDENT: Whatever the law says.

If confirmed, Judge Mukasey will be advising the President about what the law says.