In a dramatic confrontation during Attorney General nominee Michael Mukasey's confirmation hearings before the senate Judiciary Committee on Oct. 18, Sen. Sheldon Whitehouse, R-R.I., asked him: "is waterboarding constitutional?" Responding about a form of interrogation that has been used by the CIA, Mukasey said: "I don't know what is involved in the technique. If waterboarding is torture, torture is not constitutional."
After that testimony, John Hutson, former Judge Advocate General of the Navy, told the New York Sun: "Waterboarding was devised in the Spanish Inquisition. Next to the rack and thumbscrews, it's the most iconic example of torture."
And Martin Lederman, who was an attorney adviser in the Department of Justice's Office of Legal Counsel from 1994 to 2002, said about Mukasey's "not knowing enough to say whether waterboarding, or any other technique, is torture … or otherwise unlawful (shows) how far we have fallen when a jurist of Judge Mukasey's caliber cannot answer such questions without hesitation" (from the Balkinization Web site of Yale Law professor Jack Balkin).
Among others startled by Mukasey's evasiveness, George L. Gordon, a former chief appellate attorney in the U.S. Attorney's Office in the Southern District of New York said in an Oct. 20 letter to The New York Times:
"How can the United States hope to regain its position as a respected world leader on the great issues of human rights if its chief law enforcement cannot bring himself to acknowledge the undeniable verity that waterboarding (making a prisoner feel he is imminently about to drown) constitutes torture, applying any conceivable definition of that term?"
During his testimony, Mukasey also said it would be irresponsible of him to comment on any of the "coercive interrogation techniques" (that the president has approved) because he has not been "read in" on them by being allowed to see classified information on those techniques.
Trying to further the education of our prospective chief law enforcement officer, Lederman suggests he ask FBI Director Robert Mueller to show him the e-mails sent to him by FBI agents in the field "complaining that the CIA-run interrogation program amounted to torture." Lederman quotes a senior federal law enforcement official in the FBI messages: "'Those guys were using techniques that we didn't even want to be in the room for.'"
A series of these appalled FBI complaints are in a newly published book that Mukasey, members of Congress and Americans concerned with the degrading of our rule of law should read: "Administration of Torture" by American Civil Liberties Union attorneys Jameel Jaffer and Amrit Singh (Columbia University Press).
At its core are more than 350 pages selected from thousands of actual government documents obtained through the Freedom of Information Act that specifically detail systematic abuses of prisoners, including forms of torture that cannot — in our law and international treaties — be described denotatively in another way than some of the "coercive interrogation techniques" of which Mukasey professed ignorance.
Also, "Administration of Torture" prints Final Autopsy Reports from the Office of the Armed Forces Regional Examiner and the allied institute of Pathology. For example, a 52-year-old Iraqi male "found unresponsive … in isolation at Whitehorse detainment facility, Nasiriyah, Iraq. Cause of death: Strangulation. Manner of Death: Homicide." There were extensive head, neck, torso and extremity injuries.
Another autopsy report of an Iraqi death "while in U.S. custody" states the homicide was caused by blunt force injuries and asphyxia.
Other documents that should greatly interest the likely new attorney general verify that prisoners were shackled in extremely painful "stress positions," stripped in freezing cold cells and deprived of human contact for months. Moreover, the records show that the Defense Department authorized the caging of prisoners in cells as small as 3.1 feet by 4 feet by 1-1/2 feet.
Also, Mukasey will discover that this maltreatment, to use a euphemism, "took place because of (official) policy, not in spite of it — in large part," wrote Jaffer and Singh, "from decisions made by senior officials, both military and civilians. These decisions (going up to the White House) were reaffirmed repeatedly, even in the fact of complaints form law enforcement and military personnel that the policies were illegal and ineffective."
These U.S. government documents from Afghanistan, Iraq and Guantanamo Future American historians will not flinch from calling them records of war crimes — not only from soldiers from the field, but all the way up "the chain of command."
Louis Brandeis said: "Courage is the secret of liberty." The Senate Judiciary's confirmation of Michael Mukasey would not be an act of courage. And will any candidate for the presidency read carefully "The Administration of Torture?"
It's also important to remember Mukasey testified that in these circumstances, the president can use his constitutional authority to act outside of laws Congress has passed and he has signed.
This is Mukasey's America?
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).