AG Nominee Back and Forth on Torture

By Jacob Leon Beier
Impunity Watch Senior Desk Officer, North America

WASHINGTON, United States of America – Michael Mukasey, the Bush administration’s nominee for Attorney General, stated in his hearings before the Senate Judiciary Committee, that a president does not have the legal authority to use torture in the interrogation of people suspected of acts of terrorism.

Mukasey, referring to Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo’s controversial 2002 memo, said, “The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake.  It was unnecessary.”  The Senate Judiciary Committee’s Chairman, Patrick Leahy (D-VT), has previously stated that many senators refused to vote for Mukasey’s predecessor, Alberto Gonzalez, because he refused to repudiate the memo.

But, in a turn around, Mukasey, on the second day of confirmation hearings, refused to directly oppose the interrogation technique known as “waterboarding” that has been used by US personnel in the questioning of terrorist suspects.  Waterboarding is an interrogation technique where a prisoner is put in a reclining position, strapped down, and a cloth is placed over their face while water is poured over the cloth “to simulate the feeling of drowning.”  Mukasey stated, “I don’t know what’s involved in the techniques.  If waterboarding is torture, torture is not constitutional.”  According to the BBC, Senator John McCain stated in 2006 that waterboarding should be ‘outlawed.’

Torture was made illegal in 1994 with the passage of 18 USC § 2340A.

The 2002 memo, referred to as the ‘torture memo’ by some, defined torture very narrowly—the physical trauma must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.”  Its writers also argued that ratification of the 1994 torture statute may be unconstitutional because it interferes with the president’s ability to properly fulfill his duties as commander in chief.  The Justice Department “quietly rescinded” the memo in December of 2004 following strong reactions from international human rights groups.

Democratic Senators have expressed their frustration with Mukasey’s recent answers to questions concerning waterboarding.  Senator Sheldon Whitehouse (D-Rhode Island), Leahy, and Sen. Richard Durbin (D-Illinois) all expressed their dissatisfaction with Mukasey’s ‘conditional answers.’

For more information, please see:

CNN – Attorney General Nominee’s Answer on Torture Frustrates Democrats – 18 October 2007

Yahoo – Mukasey Disavows Torture Memo – 17 October 2007

BBC – Terror Law Leaves Room for Tough Questioning – 29 September 2006

The Washington Post – The Justice Dept. Memo Says Torture ‘May Be Justified” – 13 June 2004

PBS – The Torture Question

2004 ‘Torture Memo’

Title 18 – Crimes and Cirminal Procedure – Part I – Crimes – Chapter 113C – Torture
18 USC Sec. 2340A