JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that Judge Michael Mukasey's written response to Senate Judiciary Committee follow-up inquiries concerning his views on the legality of waterboarding and torture demonstrate views of America's obligations under international law so limited and problematic that he should not be confirmed…

Judge Mukasey has responded to the Senate Judiciary Committee’s written inquiry with regard to waterboarding and torture and cruel, inhuman or degrading treatment. His four-page letter to the Senate Judiciary Committee supplemented by 172 pages of related responses prompts several thoughts.

First, Judge Mukasey notes that "some Members of Congress, including those on the intelligence committees", have been briefed on the specifics of "a program run by the Central Intelligence Agency". In the context of the confirmation process, it is essential that we now ask who were those members of Congress, whether they were briefed on waterboarding and other techniques as part of that briefing, and what were the members' views on those techniques. It is far too convenient to hold Judge Mukasey’s feet to the fire on waterboarding without also holding accountable the members of Congress who have been briefed on this subject. This information is important in the context of Judge Mukasey’s confirmation because his phrase can be easily read as a veiled warning to those Congresspersons that they will be “outed” for what they allowed to go forward. That veiled warning has the effect of chilling further inquiry by other members of Congress for fear of alienating colleagues. We need to cut through this gamesmanship and get the truth out. Americans can handle the truth.

Second, Judge Mukasey, in addressing the legality of "coercive interrogation techniques," including waterboarding, provides an instance of the kind of legal analysis he would make as Attorney General as a way of assisting the committee in understanding his work method if he were to be confirmed. He essentially limits his analysis to federal statutes that are enabling legislation of the Convention Against Torture and Cruel Inhuman or Degrading Treatment and Punishment (“Convention Against Torture”) and the Constitutional standard of “shocks the conscience” that is said to apply pursuant to a United States reservation to that treaty. He makes passing reference to the Geneva Conventions and to the Convention Against Torture itself.

That is not enough. Let me be specific:

• Judge Mukasey's analysis does not take into account the prohibition against torture and cruel inhuman or degrading treatment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR). His analysis does not take into account the non-derogability of those prohibitions even in times of public emergency as expressed in Article 4 of the ICCPR.
• His analysis does not take into account the question of whether the US reservation to the Convention Against Torture is inconsistent with the object and purpose of the treaty and, as a matter of international law, of no effect. His analysis also does not express clearly whether he subscribes to the position that said reservation is only substantive (as was stated by Abram Sofaer, the negotiator of that treaty for the United States, in his January 2005 testimony to the committee) or whether he subscribes to the view that it is both substantive and geographic in limitation (i.e. only within the United States) as was stated by former Attorney General Alberto Gonzales. This point is important since detainees are essentially held abroad.
• His analysis does not take into account the fact that foreigners held by the United States are subject to the protection of the state of their nationality. Said state, as Australia did for David Hicks, will insist that their citizens be treated in accordance with the requirements of international law applicable. He does not seem aware that internal statutes of the United States are of no moment to such foreign states. What is important to those states is whether the United States is in compliance with the language of the relevant international law obligation (such as the Convention Against Torture) — not United States domestic law. He does not see that the internal law (which he might have used in his court) cannot be used in this non-court context on the international plane to extract the United States from its international obligations.
• His analysis refers to Geneva Common Article 3 War Crimes but does not address the question of liability for Non-Common Article 3 War Crimes. In Hamdan the Supreme Court only said that Common Article 3 applied without reaching the broader question of whether other articles of the Geneva Conventions apply in the current armed conflicts. A careful analysis would therefore have looked at the non-Common Article 3 articles in the Geneva Convention III on Prisoners of War as well as the non-Common Article 3 articles in the Geneva Convention IV on Civilians including protected persons and security detainees. His analysis does none of that and therefore is unacceptably cursory. He presents a cramped vision of Geneva Conventions applicability that seems even narrower than that which Jack Goldsmith took but closer to that of David Addington, which I find extremely problematic. His vision limits the analysis to the detriment of evaluating waterboarding as a per se war crime under these other provisions of the Geneva Conventions.
• He appears to be applying domestic U.S. standards for treaty interpretation and not international standards such as the Vienna Convention Law of Treaties which has been seen as authoritative by the United States in the past. With regard to the Convention Against Torture, it is of great concern that in his analysis he makes no mention of the Vienna Convention on the Law of Treaties with regard to interpretation of our obligations. Rather than only referencing a couple of internal cases to describe the court’s “shocks the conscience” standard, I hoped that Judge Mukasey would have taken into greater account the evaluation to be done is in the context of compliance with treaty obligations of the United States — not just compliance with a Constitutional standard. In a setting where he will be under enormous pressure to use internal law interpretations of the treaty that are the President’s and by definition self-serving, his inability to even bring forward the idea of the more traditional international standard is deeply troubling. Thus, the evaluation of the “shocks the conscience” standard would need to take into account concerns such as compliance with the object and purpose of the treaty, the traditional methods in international law of interpretation of treaties, and issues of whether the “shocks the conscience” reservation is an improper derogation from peremptory norms. None of that appears in the four-page letter, nor is it intimated that he would consider such matters. This type of analysis is well-known by those steeped in international law but possibly less familiar to persons who work essentially in U.S. foreign relations law We are all aware of the separation of powers, but neither the President, the Congress, nor the Supreme Court are above the United States. The treaty obligations (as well as customary international law obligations) fall squarely on the United States and his analysis in domestic law of “shocks the conscience” should be tempered by this international background. This type of analysis is all the more important in a context
  where the techniques are being applied to foreigners who are subject to the protection of the state of their nationality. On the state to state level, the internal law modifications of the United States to treaty and customary international law obligations are of no moment.

• In addition to not making any reference to the ICCPR in his analysis, he makes no reference to customary international humanitarian law, human rights law, law of diplomatic protection, or international criminal law. These additional areas of international law and the jurisprudence of international tribunals from the Nuremberg trials or the Tokyo trials onward are not referenced or analyzed in any meaningful manner. In the context of an armed conflict of global proportions, that lack of familiarity and absence in his legal analysis are of concern.
• There is no evidence that Judge Mukasey looked at the relevant state practice of other states under treaty or customary international law with regard to evaluating waterboarding or at the American jurisprudence on the subject in domestic or in international tribunals we helped to create over the past 100 years. That is not good enough these days.

Third, Judge Mukasey's analysis purports to present great concern for the impact of his comments on the personal jeopardy of those in the field or those charged with reviewing conduct of those in the field. His loyalty — upwards or downwards — is misplaced. It pains me greatly that his solicitude for those persons seems far greater than what I would hope is the central concern — defending and protecting the United States. In his role as Attorney General, an important part of the task ahead will be to cleanse the state itself of its criminality: whether at the level of those who wrote the shameless memos (that are more than mistakes), those who ordered the memos, or those down below to the lowest level implementer of the policy. It would seem that a truly independent person would show now a willingness to follow the facts where they lead both up and down and not personal loyalty concerns. If someone was induced in error as part of the common plan by someone above in the hierarchy, Judge Mukasey may determine to be solicitous towards such a person in his investigation and discretion as to prosecute. But, as the Attorney General nominee, these type of personal, almost managerial, concerns are beneath the office of the Attorney General.

Fourth, because of what is not said in Judge Mukasey's analysis above, I am worried about his commitment to transparency in his approach to the Attorney General position. Maybe one way he could show that openness would be if he committed to release or examine releasing the International Committee of the Red Cross report on the detention and interrogation techniques in the CIA Black Sites referenced in a recent New Yorker article. That report no doubt has the truth on what we have been doing. Rather than playing internal law semantic games, the discussion of the ICRC would point out whether in our practice we have complied with the international obligations that fall upon the United States as a whole and for which we would expect the Attorney General to have great concern. Those who have read the report in Congress seem to suggest that we have failed miserably. Let the American people know what our leaders and the detainees know. Have we been leveled with by our leaders? We can handle the truth.

Fifth, it pains me greatly that Judge Mukasey has not simply said that “waterboarding is torture and illegal.” It pains me greatly that the international component of his analysis is not as extensive as I think it should be of the Attorney General who would serve at this crucial time.

For these reasons, as a citizen I remain extremely troubled by Judge Mukasey’s nomination and suggest that the Senate not confirm him. If he asks why, someone might respond as Churchill responded to an employee he had fired: “Not up to the job.”

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