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.

Sincerely,

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

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2014

The End of Retirement

= Subscribers only.
Sign in here.
Subscribe here.

The Octopus and Its Grandchildren

= Subscribers only.
Sign in here.
Subscribe here.

Francis and the Nuns

= Subscribers only.
Sign in here.
Subscribe here.

Return of the Strongman

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“Evidence of a chill was plain. People in Hailey spoke to me about Bergdahl in low voices, as if about a death.”
Fox & Friends, July 6, 2014
Article
The Seductive Catastrophe·

= Subscribers only.
Sign in here.
Subscribe here.

“The world’s leaders were moved by a populace fused into a forward phalanx, were shaken by a tidal wave of militancy jubilantly united.”
Photograph courtesy Mary Evans Picture Library
Post
The Glitch in the Video-Game Graveyard·

= Subscribers only.
Sign in here.
Subscribe here.

“From the nerd squabbles of Internet discussion threads rose an urban legend that culminated in a film that hinges on digging through my town’s trash.”
Illustration (detail) by Timothy Taranto
Article
What the Camera Saw·

= Subscribers only.
Sign in here.
Subscribe here.

“They shot him behind the left ear, and he fell.”
Article
Bounty·

= Subscribers only.
Sign in here.
Subscribe here.

“If I’d been one of the unprepared, I’d be desperate, too.”
Illustration (detail) by Simon Pemberton

Chances that an organ transplanted in New York City last year came from a murder victim:

1 in 4

Two thirds of U.S. teenagers experience uncontrollable rage.

In Gainesville, Florida, a drunk man who jumped out of his pickup truck to yell at the driver in front of him was run over by his own vehicle.

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

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today