NEW YORK—Human Rights First (HRF) today announced its opposition to the confirmation of Judge Michael Mukasey as attorney general, citing his continued refusal to recognize that waterboarding – a method of torture that dates back to the Spanish Inquisition -- is unlawful.
“Above all else, America’s top law enforcement officer must uphold the laws of the United States, including those that clearly prohibit the use of torture and cruel and inhumane treatment,” said Maureen Byrnes, executive director of Human Rights First.
“Judge Mukasey has fallen short of this mark, notwithstanding repeated opportunities to clarify his positions,” added Byrnes.
Despite concerns about the views Judge Mukasey expressed on torture and on the power of the President as Commander-in-Chief to override laws passed by Congress during his initial confirmation hearing on October 18th, HRF decided to withhold judgment in hopes that Judge Mukasey’s written answers would clarify his views and alleviate these concerns.
On Tuesday, Judge Mukasey submitted written answers to the questions posed by members of the Judiciary Committee regarding waterboarding. In his responses, Judge Mukasey continued to insist, as he did in his confirmation hearing, that questions about the legality of waterboarding are hypothetical and thus impossible for him to answer before being briefed on the details of its use. This, despite the fact that active duty Army, Navy, Air Force and Marine Corps Judge Advocates General had no difficulty declaring unequivocally that the practice is illegal.
“Judge Mukasey does not need to know every detail of the CIA program to conclude that waterboarding and other acts of official cruelty violate the law. In fact, the legal analysis in his letter to the Senate Judiciary Committee acknowledges that some acts are prohibited by the law regardless of the circumstances,” said Byrnes.
Recently Human Rights First and Physicians for Human Rights, released a landmark report finding illegal ten techniques, including waterboarding, widely reported to have been authorized for use in the CIA’s secret interrogation program. The report represents a critical collaboration between medical and legal research that is necessary to assess the extent of physical and psychological harm caused by these techniques as the basis for determining their legality. The knowing infliction of the “severe” or “serious” physical pain and suffering likely to be caused by each of these techniques used separately, or more commonly, in combination with one another, constitutes a violation of U.S. law on “torture” and “cruel and inhumane treatment.”
Another troubling feature of Judge Mukasey's written responses is his refusal to state clearly that the president is bound to uphold U.S. obligations under Common Article 3 of the Geneva Conventions. In response to a written question, Judge Mukasey stated that the issue of whether the president could authorize a violation of Common Article 3 that did not rise to a “grave breach” under the Military Commissions Act of 2006 was “more complicated.”
“There should be nothing complicated about the President’s obligation to uphold the minimum standard of treatment under the Geneva Conventions — a standard upon which the U.S. military relies,” said Byrnes.
“We are still waiting for the clear and unambiguous statement that America will not allow torture or cruel and inhumane treatment as is clearly prohibited by U.S. law. Judge Mukasey’s continued refusal to say so, leaves us no choice but to oppose his nomination,” said Byrnes.