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 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.

Responding to detainee bill, Harvard law students host funeral mourning death of Constitution

More than 50 Harvard law students and professors gathered last Thursday to attend a staged funeral for the Constitution, a somber protest against the denial of legal rights such as habeas corpus and freedom from cruel, inhuman, and degrading treatment for detainees held by the U.S. in Guantanamo. Dressed in mourning attire, the organizers of the funeral offered a people’s eulogy to the nation’s most consecrated document, buried a mock-Constitution, and erected a tombstone over its grave.

“Two hundred and twenty-nine years ago the Constitution was born, but one week ago, in the mad rush as Congress closed before elections, it was killed, trampled underfoot by three hundred and eighteen Senators and Congresspersons,” Reverend Mike Jones said during the eulogy, referring to the recent passage of the Military Commissions Act of 2006. The Act strips courts of jurisdiction to hear habeas corpus appeals from detainees and gives the President broad authority to determine which interrogation techniques he deems permissible under the Geneva Conventions; students charge that these provisions risk leaving the door open for acts that constitute torture.

In keeping with their denunciation of the Military Commissions Act as a “Torture Bill”, the “pallbearers” of the Harvard funeral wore signs identifying them as individual Congresspersons who voted for the Act; they were also flanked by robed and hooded classmates who evoked the now-infamous image of torture in Abu Ghraib. The culmination of the funeral came as the members of the crowd came forward one by one to lay flowers on the Constitution’s grave, while the eulogy ended with a call to action for students and a clear message to members of the judiciary:

“If we bury the Constitution today, it is only to urge that the Supreme Court breathe life into it again… we know it has the means,” Reverend Jones concluded.

Held as part of a nationwide day of reflection on Guantanamo and the government’s broader response to the war on terror, the mock-funeral followed a two-hour public forum entitled, “Guantanamo: How Should We Respond?” Professors, students, and others gathered at the outdoor forum to speak out on such issues as the use of torture against detainees, the denial of due process rights to those held at Guantanamo, and the impact of U.S. anti-terror policies on the United States’ actual and perceived role in foreign policy and human rights issues around the world. This event also comes after a week-long advocacy effort by a coalition of Harvard professors who wrote an open letter to Congress urging the defeat of the Military Commissions Act. The open letter garnered 633 signatures from law faculty representing 49 states.

A copy of the letter bearing the 609 signatures that it had received prior to being sent to Congress is available here: Full Text of Open Letter