Waterboarding on Campus: A-okay?
“Although [water-boarding] is known to have been used by the CIA on suspected terrorists, it is a clear and unambiguous act of torture under international and U.S. law.” [1] —Jonathan Turley, professor of law at George Washington University
I am very disappointed in both Boston College Law School for its selection of Attorney General Michael Mukasey as our 2008 commencement speaker and its student body for the reprehensible apathy it has sh
own with regard to the issue. As many of my classmates do not seem to recall—and so I will remind them here—Mr. Mukasey famously dodged a question of water-boarding during his Senate confirmation hearing, refusing to say whether the interrogation technique amounts to torture. (Mr. Mukasey, however, when asked by Edward Kennedy ‘would water-boarding be torture if it was done to you?’ responded ‘I would feel that it was.’) [2] It seems Mr. Mukasey had no problem stating a technique constitutes torture when done to him but stated he would have to investigate further about its legality with regard to its application to others. At the confirmation hearing, Mr. Mukasey displayed an unsettling amount of comfort with his ability to dodge questions and provide sophisticated evasive maneuvers to straightforward questions. As Richard Durbin (D-IL) said, “We asked Judge Mukasey a simple and straightforward question: is water-boarding legal? While that question has been answered clearly by many others…Judge Mukasey spent four pages responding and still didn’t provide an answer.” [3]
It is telling—and troubling—that Mr. Mukasey refused to answer the question definitively when so many other legal scholars have already unflinchingly answered in the affirmative. Indeed, in April 2006, over 100 scholars signed a letter to then Attorney General Alberto Gonzalez, citing many national and international laws, concluding:
"Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward." [4]
Dean Garvey’s statement that he "cannot imagine a better role model for the Class of 2008" [5] in Mr. Mukasey is deeply troubling because of what it suggests, especially given the school’s Jesuit tradition. The decision to allow Mr. Mukasey speak at commencement implicitly suggests that Boston College Law School has no great objection to his positions. I should emphasize that my comments here are not to suggest that I would object if Mr. Mukasey were invited to come speak on campus in a different capacity. On the contrary, open debate is cherished and welcomed in a free society. While not an outright endorsement, however, choosing Mr. Mukasey as a commencement speaker clearly gives the impression that Boston College Law School does not have significant objections to his statements regarding water-boarding.
The truth, however, is that we should have significant objections.
Mr. Mukasey’s refusal to answer the water-boarding question unequivocally is an affront to the Jesuit tradition, which according to this law school’s own website includes a “commitment to social and economic justice.” [6] Being irresolute on water-boarding does not serve justice.
Boston College Law School—particularly because it is a Jesuit institution—and its students should give more thought to the ramifications of the school's choice of commencement speaker. The administration should strongly reconsider its decision to invite Mr. Mukasey to deliver the commencement address to the Class of 2008.
[1] Turley, Jonathan, “Mukasey’s confirmation: a vote about torture,” Los Angeles Times, 24 October 2007.
[2] Stout, David. “Mukasey demurs on waterboarding,’ New York Times, 30 January 2008.
[3] Eggen, Dan. “Mukasey losing Democrats’ backing,’ Washington Post, 31 October 2007.
[4] Human Rights Watch, http://hrw.org/english/docs/2006/04/06/usdom13130.htm. The signed professors include those from (the law schools of) Yale, Harvard, UCLA, Columbia, NYU, UPenn, Georgetown, UNC, and Texas. Emphasis added.
[5] BCLS Website, http://www.bc.edu/schools/law/newsevents/2008-archive/12308.html
[6] BCLS Website, http://www.bc.edu/schools/law/about/history/mission.html
Dmoe
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Reader Comments (4)
While the post's author brings up valid points about the morally reprehensible interrogation method known as "waterboarding," it's important to consider AG Mukasey's connection with the practice.
Mukasey has never stated his support for the practice, rather he has avoided taking a position publicly. Senator John McCain, a victim of torture as a POW during Vietnam, has stated that "he is confident Mukasey would not condone waterboarding." [1]
The true reason for this has nothing to do with Mukasey's personal views on the subject, but rather the implications that any expression would have. He said that while he personally found waterboarding and similar interrogation methods “repugnant,” he could not call them illegal. One reason, he said, was to avoid any implication that intelligence officers and their bosses had broken the law and therefore might be subject to prosecution for following orders.[2]
“I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct,” Mr. Mukasey wrote, “with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.”[3]
Though Attorney General Mukasey has received a great deal of attention for a practice he has no responsibility for, it is important for BCLS to keep an open mind about the full scope of Mukasey's views and accomplishments. We are fortunate to have such a distinguished speaker and should welcome him.
[1] Scott Shane and David Stout, "White House Moves to Save Mukasey Nomination," New York Times, Nov. 1, 2007.
[2] Id. For a greater discussion of liability issues and "retroactive discipline" for intelligence officials, see Jack Goldsmith, The Terror Presidency, at 91-97 (2007).
[3] Shane and Stout quoting Letter from Judge Michael Mukasey to Senator Arlen Specter Regarding Additional Questions for the Record, October 31, 2007, at 2, available at http://judiciary.senate.gov/pdf/07-10-17AGNomHearing-Mukaseyanswers(2).pdf
James:
I am glad you noted that Mr. Mukasey refused to give a position on waterboarding because, in part, he wanted to avoid any implication of intelligence officers and their bosses who might be subject to prosecution. This goes back to the concern that many Senators had about Mr. Mukasey: that he is more concerned with protecting his associates than upholding the law and safeguarding justice. This is morally reprehensible and a threat to justice. If waterboarding is torture--which it almost certainly is--it is depressing to think that our commencement speaker is unwilling to call it such merely to protect people he respects.
He should uphold the law, not his associates.
Dmoe,
I'm unclear about which associates you're referring to. To my knowledge, Judge Mukasey has never been a member of the intelligence community. Nor was he a part of the Justice Department when opinions regarding waterboarding were being issued and supported by individuals such as John Yoo and Alberto Gonzales.
At a hearing before the Senate Judiciary Committee today, Mukasey testified that the CIA no longer practices waterboarding under his tenure. No one has suggested that the Justice Department has condoned waterboarding since the arrival of Mukasey.
The essence of your argument is that Mukasey should be held accountable for not publicly condemning the work of his predecessors. It seems implausible that any appointed executive official would receive the President's nomination by publicly criticizing an administration's actions and/or policies. That does not mean that those individuals do not differ from their predecessors or will take steps to remedy their mistakes once in office.
One recent example is Jack Goldsmith as the AAG in the Office of Legal Counsel at the Department of Justice. He effectively resigned when his legal analysis of the Bybee Memo was not accepted. His arguments led to the overturning of that memo condoning torture and we are all better for it.
Your argument in effect is one of idealism - we should protest the system when we don't like how it operates, rather than take part in it to change from within. This is a personal decision that many interested in policy must make at some point in their career, but you should respect the choice of others to contribute to that system.
Judge Mukasey has had a distinguished record of public service including four years as an AUSA and eighteen years as a federal district judge before becoming our nation's top law enforcement official. He has never stated that he intends to do anything but uphold the law and any statement to the contrary requires factual support.
An anonymous commenter "Still Sleepy" posted a lengthy message here last night. Pursuant to EiO's new anonymity policy, we have taken it down. However, we'd like very much publish it; all that writing shouldn't go to waste.
"Still Sleepy," feel free to contact us (using the "Contact" tab above) and we'll help you register, and get your comment up.
Thanks!
jesse