(Washington, DC, October 18, 2007) – Attorney general nominee Michael Mukasey mischaracterized US obligations on torture, wrongly suggesting that so-called “unlawful combatants” in US custody are not entitled to the humane treatment protections of the Geneva Conventions, Human Rights Watch said today. This view has been squarely rejected by the Supreme Court and should be disavowed by Mukasey as well.

During confirmation hearings before the Senate Judiciary Committee, Senator Richard Durbin (D-Illinois) asked whether Mukasey agreed with the US government’s top military lawyers, who have stated that interrogation techniques such as “waterboarding” (mock drowning), the use of dogs, painful stress positions, and mock executions all violate the humane treatment requirements of Common Article 3 of the Geneva Conventions. Mukasey replied that the military lawyers’ opinions, while relevant for conflicts “in the past,” carry less weight when dealing with “unlawful combatants” today. He then went on to suggest that the humane treatment standards of Common Article 3 do not apply to interrogations of “unlawful combatants.”

In reaction to Mukasey's testimony several Democratic Congressmen have expressed their willingness to block the nomination until Mukasey's gives them a definitive (and correct) answer.

WASHINGTON (AP) - Judge Michael Mukasey's nomination for attorney general ran into trouble Thursday when two top Senate Democrats said their votes hinge on whether he will say on the record that an interrogation technique that simulates drowning is torture.

''It's fair to say my vote would depend on him answering that question,'' Judiciary Committee Chairman Patrick Leahy, D-Vt., told reporters late Thursday.

''This to me is the seminal issue,'' said Senate Majority Whip Dick Durbin of Illinois, another member of Leahy's panel. Asked if his vote depends on whether Mukasey equates waterboarding with torture, Durbin answered: ''It does.''

Senate Majority Leader Harry Reid, D-Nev., said his support could be in doubt over the same issue.

''I think if he doesn't change his direction in that regard, he could have at least one concern and that's me,'' Reid told reporters.

Leahy has refused to set a date for a vote on Mukasey's nomination until he clarifies his answer to that question

This morning Senator John McCain also stated his strong disappointment with Mukasey's testimony although he stopped short of being willing to block the nomination based on this question.

 

McCain: Anyone who says they don't if waterboarding is torture or not has no experience in the conduct of warefare or national security. This is a fundamental about America. Isn't isn't about an interrogation technique, it isn't about whether someone is harmed or not - it's about what kind of a nation we are.

Stephanapolous: Will Mr. Mukasey have to say clearly that he believes waterboarding is torture in order to get your vote?

I can’t be that absolute. But I want to know his answer. I want to know his answer. Obviously, you judge a candidate for office or nominee for office on the entire record. But this is a very important issue to me.

The fact is that Mr. Mukasey's statements to Congress on the issue of the Geneva Conventions are grossly incorrect. Last year in a 5-3 decision the Supreme Court established that Geneva does apply to so-called "Enemy Combatants." In making this statement Mukasey betrays a common deceit of the right in their argument that "Geneva doesn't apply" simply because al Qeada does not wear uniforms or insignia - they simultaneously admit that America may very well have commited "grave breaches" of Geneva in their treatment. Breaches severe enough to subject Administration Officials to War Crimes prosecution.

Further the Geneva Conventions, which under the establishment clause is considered equal to our Constitution and Laws, contains a catch-all clause which states that any combatant whose status remains "undetermined" is to be treated as fully covered by the conventions until a tribunal to determine their status has been completed.

Geneva Article 5:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal

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