Why I Signed the Faculty Letter to Attorney-General Mukasey…

Zygmunt Plater

How often in the routines of daily life are we presented with major issues of principle, legal and moral, that pose the choice of standing up and bearing witness, or hunkering down into silence and equivocation?

Dean Garvey’s unfortunate and now-regretted decision late last semester — to invite Attorney-General Michael Mukasey to receive our school’s Founder’s Medal (now withdrawn in reaction to the broadly-voiced dismay in our community) and to have Mr. Mukasey deliver the Commencement address — presented us with just such an opportunity. The Attorney-General’s continuing representation of the Administration’s position on waterboarding, a torture called “la tortura del aqua” during the Inquisition, cast us in the position of reacting against the wrongness of the Administration’s position under national and international law and morality, or maintaining a silence that bespeaks acquiescence.

It is not that Mr. Mukasey is a bad person, or is himself violating the law. From what I know of Mr. Mukasey (I went to law school with him, and subsequently have noted his distinguished career as a judge) he is a man of intelligence and integrity.

Rather the issue is that he has become the symbol of the Administration’s policy on extreme interrogation including waterboarding, an issue that was attached to him in his initial confirmation hearings October 17 & 23 of last year, and has continued ever since.

Because, for whatever reason, he has refused to say that these extreme practices are illegal, he is currently the nation’s highest legal apologist for the potential acceptability of an abhorrent practice. The waterboarding justification is the only issue for which Commencement invitee Mr. Mukasey is generally known by the public.

According to one proponent of the invitation, “Without fail, the criticism has been based on misperceptions of Mukasey’s position….” On the contrary, Mr. Mukasey’s own words actively reflect the Administration’s unacceptable position. In the January Senate hearings he said —

MR. MUKASEY: I think the Detainee Treatment Act engages the standard under the Constitution which is a shocks-the-conscience standard, which is essentially a balancing test of the value of doing something as against the cost of doing it.

SEN. BIDEN: When you say “against the cost of doing it,” do you mean the cost that might occur in human life if you fail to do it?… Do you mean the cost in terms of our sensibilities and what we think is appropriate and inappropriate behavior as a civilized society?…

MR. MUKASEY: …I meant the heinousness of doing it, the cruelty of doing it, balanced against the value…of what information you might get.

Every lawyer should recognize why this is an abdication of the Anti-Torture Principle. How, procedurally and substantively, does one decide how much heinously cruel pain can be inflicted under this test? By consulting the interrogators about what information if any they think the interrogee might possess, and weighing what they think its value if any might be. This is not a principled position, but an abdication of principle.

For our law school to grant Mr. Mukasey the honor of being our Commencement speaker unavoidably taints us symbolically with the issue: we can reasonably expect to be perceived either as implicitly aligning ourselves with Mr. Mukasey, or, far more likely, that we are unconcerned with the symbolism of choosing the representative of this position for the honor of addressing the graduating class.

The faculty letter’s message is not one of censoring an unpopular position, but the opposite: inviting an open discussion of the merits with Mr. Mukasey or his delegate. A commencement address, on the other hand, is not a discussion.

The process for issuing commencement invitations, because of the controversy that erupted over the Mukasey invitation, has now been changed to include consultation with students and faculty, a process I urged at a faculty meeting three years ago that was ruled out of order.

Hopefully the two letters being sent to Mr. Mukasey this month will likewise prompt a change in this year’s Commencement plans — one letter coming from students and the March 11 letter signed by 22 professors, including two former Deans of the law school, and supported in its underlying substantive principles by many others.

And if Attorney-General Mukasey ultimately declines our sincere invitation to shift his visit to a different time and forum, we will continue to present the merits of this unfortunate situation to the law school community and the public.

In the near future, moreover, the current Administration’s abhorrent position on torture is likely to be summarily reversed — and then, in retrospect, we will be able to be satisfied and proud for what we have done now, standing up on a matter of conscience, for an important legal and moral principle.