Mukasey: A torturous choice

by Beacon Staff • November 7, 2007

Retired federal judge Michael Mukasey, Bush's Attorney General-designate, is the wrong person to succeed the disgraced Gonzales.,With Alberto Gonzales out of the Attorney's General office, the time is right for the US to re-evaluate its use of torture in fighting the so-called War on Terror.

Retired federal judge Michael Mukasey, Bush's Attorney General-designate, is the wrong person to succeed the disgraced Gonzales. His ambiguity on the legality of legality of waterboarding is inadmissible.

Since his nomination in September, Mukasey has been hailed as a more moderate than his predecessor, whose reign over the Justice Department collapsed beneath the weight of its own controversies-wiretapping, torture and the politically-motivated discharge of federal judges.

Gonzales' long history with the president, dating back to Bush's gubernatorial cabinet in Texas, led critics to declare him a puppet for the administration.

Mukasey's career spans almost 19 years as a federal judge in New York, presiding over many high-profile cases, including those of terror suspects sheikh Omar Abdel Rahman and Jose Padilla. This firm familiarity with national security issues encouraged bipartisan support for his nomination.

But Mukasey's inability to form a straight answer on whether waterboarding is an illegal form of torture is cause for alarm-enough that the Senate should reject his nomination.

Waterboarding is particularly dubious because it leaves no physical marks. The victim is drowned-with water poured over the face and entering the lungs-to illicit a gag reflex and invoke primordial terror.

In a piece for the New York Daily News on Oct. 31, Malcolm Nance, a former instructor for the U.S. Navy Survival, Evasion, Resistance and Escape School, wrote, "Waterboarding is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration."

"Waterboarding," Nance concludes, "is a torture technique-period."

When Mukasey was asked during a nomination hearing on Oct 17. in front of the Senate Judiciary Committee if interrogation tactics such as waterboarding are legal, he dodged the question.

"I am certainly going to examine the underlying memos and the underlying facts," was all Mukasey could muster.

On Oct. 30, Mukasey sent a letter to committee members to clarify his stance.

"These techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans," he wrote.

A refreshing and forthright opinion from a Bush nominee, but Mukasey followed this with a frightening contradiction.

"But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical," the letter continued.

Mukasey also re-affirmed that torture, including waterboarding, is illegal under the 2005 Detainee Treatment Act, as well as banned by the Army Field Manual on Intelligence Interrogation.

But neither expressly ban the use of torture under all circumstances, giving leniency to the CIA.

In 2002, the Bush administration authorized the CIA to use waterboarding and other techniques on detainees in the War on Terror, according to a 2005 ABC News report.

Former CIA officials interviewed said detainees usually confessed in under a few minutes, if not right away.

But the speed of coercion does not guarantee reliable information.

In December 2006, the National Defense Intelligence College released a report by the Intelligence Science Board questioning the military's use of coercive interrogation since 9/11/01.

In the study, Steven Kleinman, a retired colonel and former senior intelligence officer for the Pentagon, wrote, "The potential for gain is arguably problematic since the scientific community has never established that coercive interrogation methods are an effective means of obtaining reliable intelligence information."

Kleinman also wrote that under the extreme stress of torture, a detainee's ability to reliably recall information is suspect.

Despite the implications of leaving the legality of torture ambiguous, the Senate looks likely to confirm Mukasey.

On Nov. 6, the Senate Judiciary Committee voted 11-8 in favor of Mukasey, with Democrats Charles Schumer of New York and Dianne Feinstein of California voting with the nine Republicans on the committee. This ensured that the nomination will reach the full Senate in the next few weeks.

It is hard to imagine how Mukasey, with his years of experience in terror cases, lacks the "underlying facts" to say whether a form of drowning is torture-or to say much about it at all.

The US needs an Attorney General who gets it right on the use of these interrogation techniques.

Mukasey is not the one.