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10 Senators Challenge Musakey on Waterboarding

10 Senators Challenge Musakey on Waterboarding

Oct-23-07 11:19 pm

Senator Leahy with Mukasey before his Hearing
Photo--- Susan Etheridge for The New York Times

Over at Balkinization, Marty Lederman brings to our attention a letter signed by Senators Durbin, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Cardin, and Whitehouse challenging Mukasey on his refusal to conclude that waterboarding is illegal. The senators write:

Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subjected to this abusive technique. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners. It also makes it more difficult for the United States to condemn repressive governments that use waterboarding on their own citizens. We are particularly troubled by recent reports that the Burmese military has used this form of torture against democracy activists. Human rights abuses such as this have rightly prompted the Administration to impose additional sanctions against the Burmese regime.

Please respond to the following question: Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations?

Unfortunately, I suspect Mukasey will again attempt to avoid directly answering the question. And why won't he? Marty suggests the reason:

Mukasey can't say that waterboarding is unlawful because OLC has already opined -- several times over, apparently -- that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.

As Marty explains, Mukasey noted at his hearing that

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.

Tags: torture human rights

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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