Their message strongly endorsed the view of former judge advocates general that waterboarding “is inhumane, is torture, is illegal.”  The intelligence veterans added that it is also a notoriously unreliable way to acquire accurate information. 

They noted that the factors cited by the president and Mukasey as obstacles to his giving an opinion on waterboarding can be easily solved by briefing Mukasey on waterboarding and on C.I.A. interrogation methods. 

The former intelligence officials pointed out that during their careers they frequently had to walk the thin line between morality and expediency, all the while doing their best to abide by the values the majority of Americans have held in common over the years. They appealed to Senators Patrick Leahy and Arlen Specter to rise to the occasion and discharge their responsibility to defend those same values.

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                November 5, 2007 
           
          

MEMORANDUM FOR: Chairman and Ranking Member

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          Senate Committee on the Judiciary 

FROM:   Former U.S. Intelligence Officers 

SUBJECT:   Nomination of Michael Mukasey for Attorney General 

Dear Senators Leahy and Specter,

      Values that are extremely important to us as former intelligence officers are at stake in your committee’s confirmation deliberations on Judge Michael Mukasey.  With hundreds of years of service in sensitive national security activities behind us, we are deeply concerned that your committee may move his nomination to the full Senate without insisting that Mukasey declare himself on whether he believes the practice of waterboarding is legal. 

      We feel this more acutely than most others, for in our careers we have frequently had to navigate the delicate balance between morality and expediency, all the while doing our best to abide by the values the vast majority of Americans hold in common.  We therefore believe we have a particular moral obligation to speak out.  We can say it no better than four retired judge advocates general (two admirals and two generals) who wrote you over the weekend, saying:  “Waterboarding is inhumane, it is torture, and it is illegal.”     

      Judge Mukasey’s refusal to comment on waterboarding, on grounds that it would be “irresponsible” to provide “an uninformed legal opinion based on hypothetical facts and circumstances,” raises serious questions.  There is nothing hypothetical or secret about the fact that waterboarding was used by U.S. intelligence officers as an interrogation technique before the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004.  But after Alberto Gonzales became attorney general in February 2005, Justice reportedly issued a secret memo authorizing harsh physical and psychological tactics, including waterboarding, which were approved for use in combination.  A presidential executive order of July 20, 2007 authorized “enhanced interrogation techniques” that had been banned for use by the U.S. Army.  Although the White House announced that the order provides “clear rules” to govern treatment of detainees, the rules are classified, so defense attorneys, judges, juries—and even nominee Mukasey—can be prevented from viewing them. 

      Those are some of the “facts and circumstances.”  They are not hypothetical; and there are simple ways for Judge Mukasey to become informed, which we propose below.  

      Last Thursday, President George W. Bush told reporters it was unfair to ask Mukasey about interrogation techniques about which he had not been briefed.  “He doesn’t know whether we use that technique [waterboarding] or not,” the president said.  Judge Mukasey wrote much the same in his October 30 letter, explaining that he was unable to give an opinion on the legality of waterboarding because he doesn't know whether it is being used:  “I have not been made aware of the details of any interrogation program to the extent that any such program may be classified and thus do not know what techniques may be involved in any such program.”  Whether or not the practice is currently in use by U.S. intelligence, it should in fact be easy for him to respond.  All he need do is find out what waterboarding is and then decide whether he considers it legal.  

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