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US: Senate Should Reject Mukasey Nomination

Refusal to Denounce Waterboarding Shows Him Unfit for Attorney General

The United States Senate should reject Michael Mukasey’s appointment as attorney general because of his unwillingness to state that “waterboarding” and other cruel, inhuman and degrading treatment is illegal, Human Rights Watch said today.

In response to written questions from the Senate Judiciary Committee, Mukasey said on 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.”

In his 172-page response to Senate Judiciary committee questions, Mukasey refused to comment on the legality of any 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 said.

“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.

Human Rights Watch pointed out that waterboarding has been prosecuted by US military courts as torture for more than 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 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. Several JAGs specifically stated that use of 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 administration’s view, little shocks the conscience if done in the name of fighting terrorism. That thinking led to the adoption of abusive interrogation techniques – including waterboarding – in the first place.

Of particular concern, Mukasey suggested that the rules of interrogation adopted in 2006 by the US Army Field Manual are primarily designed for the 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 of those 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 a number of other 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 a prosecution against a terrorist suspect, and whether an American citizen detained on US soil could be indefinitely detained as an “enemy combatant.” Mukasey also failed to answer what, if anything, he would do to oversee the actions of 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.”

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