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Mukasey balks at calling waterboarding illegal in response to judiciary panel

[JURIST] US Attorney General nominee Michael Mukasey [WH profile; JURIST news archive] wrote in a letter [PDF text] to Democrats on the Senate Judiciary Committee Tuesday that he did not know if waterboarding [JURIST news archive] was illegal, and that it would be "irresponsible" of him to provide a legal opinion on any specific interrogation technique without an in depth analysis of relevant laws and more information about its use. In his letter, Mukasey said:

I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the
same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical. As a judge, I tried to be objective in my decision-making and to put aside even strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented. A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value.

I have said repeatedly, and reiterate here, that no one, including a President, is above the law, and that I would leave office sooner than participate in a violation of law. If confirmed, any legal opinions I offer will reflect that I appreciate the need for the United States to remain a nation of laws and to set the highest standards. I will be mindful also of our shared obligation to ensure that our Nation has the tools it needs, within the law, to protect the American people. ...

I do know, however, that "waterboarding" cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act ("DTA"). That is because "waterboarding" and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense ("DOD") or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the Manual.

In the absence of legislation expressly banning certain interrogation techniques in all circumstances, one must consider whether a particular technique complies with relevant legal standards.
Mukasey went on to summarize the analysis he would use to determine "whether coercive interrogation techniques, including 'waterboarding' as described in your letter, would constitute torture, cruel, inhuman or degrading treatment, or a violation of Common Article 3 of the Geneva Conventions."

Senate Judiciary Committee chairman Patrick Leahy (D-VT) released a statement [text] in response to Mukasey's letter late Tuesday, saying that he remained "very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States." Both Democrats and Republicans [JURIST reports] on the committee have urged Mukasey to take a position on waterboarding - a technique that replicates the effects of being drowned - in order to receive a favorable recommendation to the full Senate. AP has more.

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