judge mukasey has clarified
a fair number of his ambiguous
statements from the hearing on
october 18, 2007. . .
even so, he still owes the senators
several more, very important, answers — like
declaring whether, in his opinion, after
having now taken some time to study what
the practice of “waterboarding” entails,
that practice is prohibited — regardless
of whether it is labeled “torture” [note,
below, that mukasey adheres to the majority-
view — the more expansive notion of what the
eighth amendment prohibits, and to whom it applies]. . .
this, then, all in all [PDF], is a pretty good start:
. . .When UNCAT was ratified in 1994, Congress complied with its terms by enacting statutes banning torture. Moreover, in consenting to ratification of the treaty, the Senate added the caveat that cruel, inhuman and degrading treatment would be understood in the United States as the treatment forbidden by the Fifth, Eighth and Fourteenth Amendments to the Constitution. Congress further extended the prohibition with the McCain Amendment (enacted as part of the Detainee Treatment Act in 2005), which statutorily bars cruel, inhuman and degrading treatment and reaffirms our treaty commitment. That amendment also extends the protection of those standards beyond the nonnal reach of the Constitution — as to both nationality and geography — to include aliens in the custody of the United States, wherever held, as does the implementing legislation banning torture.
Therefore, it is accurate to say that torture and cruel, inhuman and degrading treatment are prohibited by the laws of the United States, which of course includes the Constitution. Moreover, this protection, based as it is on a treaty and statutes enacted by Congress and signed by the President, is at the top of the three-tier hierarchy described by Justice Jackson in his famous concurrence in the Steel Seizure case. Youngstown Sheet & Tube v. Sarryer, 343 U.S. 579,635-38 (1952) (Jackson, J., concurring). This status is enhanced further by the anti-torture reach of the referenced constitutional amendments. . .
— michael mukasey, letter
dated october 24, 2007
and now, a fine batch of questions
from senator sheldon whitehouse (10.25.07):
Questions Submitted by Senator
Whitehouse for Michael Mukasey
1. The State of Rhode Island has a serious problem with human trafficking, which is an important criminal justice and human rights issue. If confirmed, what will you do as Attorney General to ensure that the Department’s resources are effectively deployed to combat human trafficking? Does the Department have adequate resources to effectively confront this problem? Is any new legislation necessary to help the Department combat human trafficking?
2. Do you believe that the President may act contrary to a valid executive order? In the event that he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?
3. The U.S. has long taken the position that techniques such as waterboarding, forced standing for prolonged periods, and sleep deprivation constitute war crimes. As early as 1901, a U.S. Army Major, Edwin Glenn, was convicted for waterboarding a captured insurgent in the Philippines. U.S. military commissions after World War II prosecuted Japanese troops for engaging in waterboarding and stress positions. A Japanese soldier named Tetsuo Ando was sentenced to five years hard labor for, among other offenses, forcing American prisoners to “stand at attention for seven hours.” Similarly, Yukio Asano was convicted for, among other charges, “forcing water into [the American prisoners’] mouths and noses.” Do you believe the United States Government was right to prosecute these men?
4. In your testimony to the Senate Judiciary Committee on October 18, 2007, you indicated that you did not know what is involved in the technique of waterboarding and that if the practice of putting someone in a reclining position, strapping him or her down, putting cloth his or her face and pouring water over the cloth to simulate the feeling of drowning “amounts to torture, it is not constitutional.” Now that you have had a chance to review the relevant public documents describing waterboarding, can you explain any circumstances under which waterboarding would not constitute torture?
5. The Judge Advocates General (JAGs) of the U.S. Army, Navy, Air Force and Marines stated in August 2006 that the use of stress positions, dogs, and forced nudity for interrogation purposes are all unlawful. Do you agree with the JAGs that the use of stress positions, dogs and forced nudity are unlawful? Please address each technique individually, and, if you believe any of these techniques are lawful, please explain the legal basis for each conclusion.
6. On what legal basis would the United States object if the Government of Iran or North Korea detained an American citizen, accused him of engaging in hostile acts, and detained him in secret, denying consular visits and ICRC access, and even refusing to acknowledge his detention?
7. In his book, Jack Goldsmith concluded that, at the direction of the White House, the Office of Legal Counsel had refused to show certain draft opinions to the Department of State in order to “control outcomes in the opinions and to minimize resistance to them.” If you are confirmed as Attorney General, would you allow your attorneys to accept direction from the White House to exclude or ignore the Department of State lawyers when analyzing international law? Can you imagine a circumstance in which it would be appropriate to exclude these attorneys?
8. What specific steps will you take, beyond having conversations with current and former Department officials and with members of Congress, to audit which internal processes, rules, traditions, norms, and practices need to be changed or restored in order to support the Department’s return to independent, professional, and non-political standards? Will you convene a bipartisan “blue-ribbon” commission composed of former high-ranking Department officials to make recommendations in this regard?