No Comment — November 4, 2007, 1:02 pm

The JAGs Set the Record Straight

Michael Mukasey in his testimony and written responses admits of much uncertainty as to whether waterboarding is illegal. This is scandalous. There is no issue on the subject. In connection with consideration of the Military Commissions Act of 2006, the four TJAGs testified that the practice of waterboarding constituted torture and was a criminal act not subject to qualification or privilege. And now four former TJAGs write to support the view taken by their serving colleagues:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue – but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture – no less than wanton killing – is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact – as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule – the law – has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise – or even to give credence to such a suggestion – represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.


Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada



October 2015

Lives by Omission

Lifting as We Climb

Cattle Calls

Getting Jobbed

view Table Content


“One of the peculiar things about economic inequality is that the people who are most articulate about it are not poor, while the poor themselves have said little, at least in print, about their situation.”
Photograph © Reuters/Brendan McDermid
“It would be nice to get through this review without recourse to the term ‘writer’s writer.’ The thing is, in the case of Joy Williams, I have seen the cliché made flesh.”
Illustration by Steven Dana
“Miniatures originated in Persia and were brought to the Indian subcontinent when the Mughals conquered it in the sixteenth century. They could take on almost any subject: landscapes or portraits; stories of love, war, or play.”
Painting by by Imran Qureshi.
“The business of being a country veterinarian is increasingly precarious. The heartland has been emptying of large-animal vets for at least two decades, as agribusiness changed the employment picture and people left the region.”
Photograph by Lance Rosenfield
“Rosie and her husband had burned through their small savings in the first few months after she lost her job. Now their family of five relied on his minimum-wage paychecks, plus Rosie’s unemployment and food stamps, which, combined, brought them to around $2,000 per month, just above the poverty line.”
Illustrations by Taylor Callery

Percentage of Americans who can correctly name the Chief Justice of the Supreme Court:


Peak happiness was observed at a per capita GDP of $36,000.

Doctors Without Borders withdrew from the Afghan city of Kunduz after a U.S.-led airstrike destroyed one of the organization’s hospitals, killing 22 people.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!


Subways Are for Sleeping


“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today