Refuses to Rule Out Waterboarding
October 19, 2007
The Supreme Court and even the Bush administration recognize that all captured combatants are entitled to humane treatment. The chief law enforcement officer of the land should know that as well.
Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch

Attorney general nominee Michael Mukasey mischaracterized US obligations on torture, wrongly suggesting that so-called “unlawful combatants” in US custody are not entitled to the humane treatment protections of the Geneva Conventions, Human Rights Watch said today. This view has been squarely rejected by the Supreme Court and should be disavowed by Mukasey as well.

During confirmation hearings before the Senate Judiciary Committee, Senator Richard Durbin (D-Illinois) asked whether Mukasey agreed with the US government’s top military lawyers, who have stated that interrogation techniques such as “waterboarding” (mock drowning), the use of dogs, painful stress positions, and mock executions all violate the humane treatment requirements of Common Article 3 of the Geneva Conventions. Mukasey replied that the military lawyers’ opinions, while relevant for conflicts “in the past,” carry less weight when dealing with “unlawful combatants” today. He then went on to suggest that the humane treatment standards of Common Article 3 do not apply to interrogations of “unlawful combatants.”

“The Supreme Court and even the Bush administration recognize that all captured combatants are entitled to humane treatment,” said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch. “The chief law enforcement officer of the land should know that as well.”

In Hamdan v. Rumsfeld, the US Supreme Court held that the humane treatment obligations of Common Article 3 apply to “enemy combatants” in United States custody. The Bush administration has since responded by issuing an executive order requiring the CIA to comply with Common Article 3 in its interrogation of detainees. This means that any interrogation technique approved for use by the CIA must be consistent with what the United States believes is permitted by Common Article 3. The United States would therefore have to acknowledge that the same techniques could lawfully be used by other nations against captured US soldiers and citizens in any situation governed by Common Article 3.

Mukasey also refused to repudiate waterboarding as torture, claiming he did not know what the technique entailed. Even when the technique was described to him in detail, he still refused to renounce it as torture and illegal.

“With all the public debate about waterboarding, it’s preposterous that Judge Mukasey would not know what it is,” said Daskal. “If he can’t tell the Senate that waterboarding is torture, how will he tell it to the CIA?”

Human Rights Watch pointed out that waterboarding has been prosecuted by US military courts as torture for over 100 years, since the Spanish-American War. After World War II, US military commissions prosecuted and severely punished enemy soldiers for having subjected American prisoners to waterboarding. In its annual Country Reports on Human Rights Practices, the State Department has consistently condemned other countries for waterboarding.

The Judge Advocates General of the US Army, Navy, Air Force and Marines agreed in August 2006 that the use of waterboarding to create the misperception of drowning would violate US law and the law of war. Several Judge Advocates General (JAGs) specifically stated that use of this technique would violate the US anti-torture statute, making it a felony offense.
 
“The United States chief law enforcement officer should be able to say – without hesitation – that strapping someone to a board, stuffing a rag in his mouth, and pouring water over his head so he fears drowning is torture,” said Daskal.