Democrats on the Senate Judiciary Committee sent a letter to Michael Mukasey expressing how “deeply troubled” they were at his “refusal to state unequivocally that waterboarding is illegal” on October 23, 2007. Asking Mukasey to clarify his answer as to whether waterboarding is “illegal under U.S. law, including treaty obligations,” the Senators noted that during the second panel on Mukasey’s confirmation, retired Rear Admiral John Hutson, former Navy Judge Advocate General and Dean of the Franklin Pierce Law Center, stated:

Other than, perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It’s a little disconcerting to hear now that we’re not quite sure where water-boarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

See the full Senate letter here (page 1, page 2, page 3). See also a Harvard Law School faculty letter on waterboarding sent to those same Senators prior to the confirmations hearings, which notes that waterboarding not only is illegal, it is criminal. Better than asking Mukasey whether he finds waterboarding illegal, the Senators should have asked him whether he thinks it criminal. There is still time to do so.

[UPDATE: Presidential candidate Bill Richardson has said Mukasey is not fit to be Attorney General unless he can say an unqualified “waterboarding is torture.”].

Do not expect the rule of law to flow from a man who waffles on waterboarding. Waterboarding is torture, and torture is antithetical to justice.

A nominee to be the head of the Justice Department should know that already. And yet, during his job interview, when asked about waterboarding Michael Mukasey claimed he didn’t know what that technique involved. That is either a lie or an early admission of incompetence. Worse still, after having waterboarding described to him, Mr. Mukasey refused to call it torture. That alone is enough to disqualify him for the job of Attorney General.

In fact, the Senate already rejected Steven Bradbury as the nominee to be the head of the Office of Legal Counsel in the Department of Justice for similar reasons. Senator Durbin long ago objected that “Mr. Bradbury refuses to repudiate un-American and inhumane tactics such as waterboarding, mock executions, and physically beating detainees.” In fact, the day before Mr. Mukasey’s hearing, Senators Durbin, Feingold, and Kennedy, formally requested President Bush to withdraw Mr. Bradbury’s nomination, stating, “Mr. Bradbury has refused to answer straightforward questions from Judiciary Committee members regarding torture.” And now, so has Mr. Mukasey refused the same. After his lack of candor before the Senate, Mr. Bradbury was later revealed to be the author of the two new secret torture memos, which the New York Times reported on two weeks ago. Is Mr. Mukasey, a budding torture relativist, heading down the same path?

How did we go as a nation from the insisting on the Trials of Nuremberg to opposing the International Criminal Court, from sponsoring the Universal Declaration of Human Rights to writing secret torture memos, from Ambassador Satchmo to Ambassador Bolton?

The President did not do it alone. The Court has been complacent, and the Congress complicit. A single Senator would have been enough to filibuster the Military Commissions Act of 2006, but none came forward. With the anniversary of that widely recognized stain on our legal tradition passing before us, the time for moral leadership is long overdue.

Who will step forward? The world is watching. Our children will learn who stood up and who stood down. No more “hedging.” Act now. Vote no. Stop torture.

A group of five Harvard Law School faculty members sent a letter to the Senate Judiciary Committee last Friday, October 12, 2007, urging Senators to demand that Mr. Mukasey–who faced his first confirmation hearing for the position of Attorney General this Wednesday, October 17, 2007–investigate and punish the authorization, ordering, and use of waterboarding, a technique the U.S. has a history of prosecuting as a war crime.

See the letter here.

For the most accurate coverage of the hearings so far, see Slate’s The Senate Runs into the Arms of Michael Mukasey.

Soldiers in Vietnam use the waterboarding technique on an uncooperative enemy suspect near Da Nang in 1968 to try to obtain information from him. (United Press International) [Washington Post article]

A very brave group of 50 high school senior receiving the Presidential Scholars award at the White House delivered a hand-written letter to President Bush yesterday at the ceremony, according to the AP. Seems like the students prepared it impromptu. The president was apparently a bit surprised by this unscripted form of citizenship. He read the letter in front of them after it was handed to him and talked to the young woman who gave it.

Way to see through the lies and express yourselves high schoolers. It is proof that a group of 50 high schoolers from around the country who barely know each other have a greater sense of national morality than the present government.

The White House came out with its usual statement about how the US does not torture, which of course, uses code words that allow for the loopholes the president thinks exist (ie. no torture as the administration defines it, but yes cruel, inhuman, and degrading treatment, especially in facilities outside the US run by intelligence services if the president determines it is necessary for national security).

I wanted to comment on a response to our protest, posted by a visitor to our friend Andrea Saenz’s blog. It is typical of a small number of comments or blog posts that have cropped up, from students who think our actions against the Attorney General were inappropriate and in poor taste. I should say, though, that this particular comment is extremely mild in comparison to some of the posts out there, many of which pitch personal and vileful attacks on some of the students involved. Click here , here , here and here for the most intelligent and thoughtful criticisms of fellow protester, Thomas Becker. To save myself further blogger’s breath, I thought it worthwhile to post a student’s comment and my reply below:

Disapproving HLS Student:

Sadly, it is the students of the law school who dropped the ball and not Gonzales. We acted like idiots and embarased the institution with this childish partisan demonstration. I thought this school was better than that, and can show respect for anyone who comes here. This is supposed to be an academic institution open to freedom and inviting to anyone who wants to come avail themselves of it. Especially prominenet governmental figures coming bach for a class reunion. This is shameful and pathetic. Posted by: | April 30, 2007 at 09:03 AM

StopTorture:

The demonstration was not partisan. The only positions it took were against torture, indefinite detention, and the use of state power and the legal profession to subvert the rule of law. I would have demonstrated with the same vehemence against the Attorney General if he were a Democrat.

These are not partisan issues. They are issues of legality, morality, and professional ethics, and the AG has failed on all counts. While the architects of these criminal policies are most directly to blame — and in this case, they happen to be Republican — I also hold in contempt both the Democrats and Republicans who have not done everything within their political power to put an end to these policies. I vote in NJ, and Senators Frank Lautenberg and Robert Menendez, both Democrats, voted for the Military Commissions Act. I published a letter in the Trenton Times renouncing my affiliation with the Democratic Party, and I can safely say that I will never vote for them again.

The use of torture is a violation of domestic, international, and humanitarian law. It applies to all state officials, red and blue. And all who sit by and watch in silence, whether they be public or private citizens, are acquiescing and playing their own small part in the web of complicity.

Furthermore, none of us ever said that the Attorney General did not have a right to come to his reunion. All we did was exercise our right to express that he was not welcome there. While we obviously cannot represent the sentiments of the whole school (some, like you, disagree with us), there are many others who do agree with us, and they have thanked us profusely for voicing that sentiment.

A very small minority of students have called our actions “shameful,” “pathetic,” “inappropriate,” or “tasteless.” One student expressed that this was the Attorney General’s “quiet time” and that we should respect it.My response is that creating policies that authorize the torture, cruel, inhuman, and degrading treatment, and indefinite detention of hundreds of human beings is worse than all the adjectives above. It is immoral and, most clearly, illegal.

The Attorney General should be prosecuted for war crimes. But as long as he remains Attorney General, and as long as the President remains in power, he will not be brought to justice. Therefore this was not an action to protest policy we simply disagree with — although we would have had a right to do that as well. As the children of the disappeared in Argentina said, at a time of impunity, when those responsible for the kidnapping and murder of their parents roamed free on the streets: “Where there is no justice, let there be shame.”

Finally, I would say to those students: “shameful,” “pathetic,” and “tasteless” is the sharing of drinks, smiles, and niceties with this man, while human beings continue to be severely harmed thanks to his policies, and the law in the most influential democracy in the world continues to be corrupted thanks to his actions. Shameful, pathetic, tasteless — and immoral, disgusting, and tragic is to sit in silence reading Constitutional Law while that man strolls through the library of your legal institution.

A few days after a German federal prosecutor dismissed charges against Donald Rumsfeld, Alberto Gonzales, and Co., lawyers for the victims of torture in Abu Ghraib and Guantánamo announced that they would continue the fight for justice in Spain. Reuters has the story. Der Spiegel reports that CCR‘s president, Michael Ratner, said: “There is no safe haven for Rumsfeld. … If the Germans aren’t bold enough then we’ll try in Spain.”

In a display of impeccable timing, German federal prosecutor Monika Harms dismissed the case on April 27, 2007, the eve of the third anniversary of the Abu Ghraib scandal. Even more remarkable is the fact that the press completely failed to make the connection. In her dismissal, Harms claimed there was no indication that the case against the Attorney General and former Secretary of Defense would not be investigated and tried in U.S. courts.

Three years later, impunity reigns supreme.

We just handed off our letters to Ellen Lubell, attorney for an Algerian detainee in Guantanamo, who has kindly agreed to take them to Washington, where they will be distributed among the rest of the habeas counsel and delivered to the appropriate Congressional offices. We collected almost 600 letters from almost 200 people to Senators and Congressmen from the following 22 states:

Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Texas, Utah, Virginia, and Washington.

Hopefully these letters will make some members of Congress take heed. As was to be expected, almost exactly half of our letters wil be going to Massachusetts folks. Receiving over 80 letters from his constituents may not have too much of an impact on Representative Capuano of Cambridge and Somerville — who must already be one of the most liberal members of Congress! — but it doesn’t hurt to remind Senators Kennedy and Kerry that this is an issue that their constituents care deeply about. The Democratic leadership has been a big part of the problem, and they, too, need to be pushed.

More than anything, though, this week’s action did wonders for re-energizing and re-mobilizing us (we had about 30 students actively volunteering), for sparking discussion on campus with students, children, and visitors — and giving us the tools and random coincidences that we needed to pull off the impromptu Gonzales protest … which has ended up getting a huge amount of coverage. Here’s to hoping that every little bit helps.

Thank you CCR for the call for action, and for launching this network of students. I hope we can continue to use it for bigger and better actions in the future.

It’s been a pleasure,
The Harvard Crew