Mukasey on Torture: Of Sins, Mistakes and Crimes

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that US Attorney General nominee Judge Michael Mukasey should take a more forthright stand on the criminality of torture committed by US personnel acting under executive authorization in the "war on terror"...



Many of us are closely watching the confirmation hearing for US Attorney General nominee Judge Michael Mukasey to get a sense of how this man will address a central issue affecting America's standing in the world: torture.

The indications from his presentation Wednesday were troubling. When referring to the infamous 2002 Bybee memo, he seemed to dodge the issue of the actions of the US Justice Department and other lawyers by stating that "the Bybee memo was worse than a sin, it was a mistake."

I could almost hear the lawyers who carefully worked to subvert the Geneva Conventions and other international law breathe a sigh of relief. To me, Judge Mukasey was signaling that he was going to go along to get along. What I mean by that is that he was going to view the legal efforts so roundly denounced as merely "misfeasance" — the classic dodge used for high-level civilian actions — rather than malfeasance — crimes for which low-level military were prosecuted as part of the detainee scandal. He appears to be saying those instructions in those memos as to what was permitted can be chalked up to "mistakes were made."

Yet we know the intentionality with which those documents were carefully written to create a definition of torture that would permit torture. We know of the repudiation of December 2004 followed by the 2005 newly-revealed secret memos allowing the torture to continue that were a carefully orchestrated charade to get Attorney General Gonzales confirmed and keep the torture going.

Judge Mukasey spoke of our treaty obligations and the President's Executive Order and stated that we do not torture. The problem with that trope, Judge Mukasey, is that we do torture.

We have waterboarded — that is torture. We have had the International Committee of the Red Cross (ICRC) report on acts done by our personnel in Iraq that were "tantamount to torture." And we know of an ICRC Report on the CIA Black Sites detention and interrogation which is reported to state that we have tortured. Further, on Thursday, Maher Arar is going to recite his being sent to Syria by the United States to be tortured. We have tortured and when Judge Mukasey is read in, I hope that those who have done all these things will read him in on the full dimensions of this torture.

And that torture is not the result of a few bad apples, but of a policy and planning put in place by the President on down including the Office of Legal Counsel in his Justice Department. In an environment where persons aggressively bandy about the idea of a unitary executive, Judge Mukasey's distinct unwillingness to answer whether he thinks there is a Commander-in-Chief override on torture is very troubling. He has blinked when we seek a firm stare back at us.

I would imagine he has blinked notwithstanding his recital of the abhorrent history of torture which we saw committed in World War II by our enemies. But now it is us who are tempted by the same demon. And every instinct of judicial deference Judge Mukasey has I would imagine is leading him to not stand in the way of the President who is bound to protect the United States.

Yet, in the case of torture, the United States has an international obligation freely assumed in treaties which is also the product of painful customary international law creation to which there is no possibility of derogation or excuse. It is clear from Jack Goldsmith's new book that this White House and this Congress have not wished to bend their wills to that standard. Rather, they have preferred to bend the standard to their wills. That is not the rule of law — that is the rule of men.

I hope that Judge Mukasey will have the intestinal fortitude to look back at the former and present lawyers and others who put in place this monstrous torture structure and cleanse the state of their criminality by prosecuting them for their malfeasance. There are plenty of federal laws that they have violated. As part of helping to develop the political will for that, I hope that he will be the one who will release the ICRC report on the CIA Black Sites to the American people. One does not have to be a former federal judge or confirmed by the Senate to be able to handle the truth. The American people can handle the truth. Let us read how our leaders have tortured in our names. Then, if we turn a blind eye — let it be on us. As in another generation in another country, let us not have the principal legal officer of our government continue to provide the American people that most convenient of alibis "I didn't know." There are plenty of good Americans who refuse to be good Germans.


Benjamin Davis is a professor at the University of Toledo College of Law
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