Scott Horton on Mukasey / Waterboarding

Scott Horton writes in Harpers about the real reason Attorney General nominee Michael Mukasey (who will likely be confirmed after Senators Schumer and announced their willingness to support his nomination yesterday) repeatedly refuses to state that waterboarding is torture:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Try to fathom Mukasey's dilemma for a second and what it says about where we are as a nation. The person nominated for chief law enforcement officer of the nation cannot say that a technique banned by the Army Field Manual, used extensively by the Pol Pot regime in Cambodia (remember The Killing Fields?), and by the Spanish Inquisitors cannot be described as "torture" because to do so would subject officials at the highest levels of government to prosecution for war crimes as well as force them to admit that Bush's claim of "We don't torture" was another outright lie.

A former federal judge, Mukasey cannot state as an official what he believes as a person, that pouring water continuously over a person's face while his legs are elevated to create the sensation of drowning, is torture. He can't say this as he undergoes the nomination process else he have to later admit that his description would or at least should require him to prosecute those who nominated him as chief law enforcement officer.

As Hamlet said, "That it should come to this!"

Then today, it is revealed that a Justice Department official who replaced Jack Goldsmith at the White House's Office of Legal Counsel, personally had himself waterboarded to judge whether it amounted to torture. As ABC News describes it:

A senior Justice Department official, charged with reworking the administration's legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News....Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use... But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

If Levin found waterboarding terrorizing, think how it feels when you are not held in a controlled environment but instead led to believe it will be kept up until you drown. Mukasey finds this "repugnant" but can't call it "torture" because the Federalist Society screeners know this characterization will subject even Cheney and Addington to future prosecutions.

Sound like a guy you want as chief law enforcement officer? A majority of Democrats on the Judiciary Committee think so and his nomination seems inevitable.

As depressing as this is, consider another article by Scott Horton where he describes the fate of a member of the Nazi party and a lawyer.

I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system."

How will history judge lawyers today? Is Rudy Giuliani right when he says that torture depends on who's doing it?