ACSBlog: The Blog of the American Constitution Society

Judge Michael Mukasey received two letters from members of the Senate Judiciary Committee regarding his testimony in recent confirmation hearings.

Ranking member of the Senate Judiciary Committee Arlen Specter (R-PA) wrote to request Mukasey's "views on the scope of the President's Article II powers to disregard an explicit statutory requirement. If you believe the President can act outside the law, how do you square that belief with your statement at the hearing that 'The President doesn't stand above the law[?]'" Specter added that "it is necessary for you to respond in detail as to your views on the legality and propriety of water-boarding and the appropriate scope of interrogation under U.S. law and the Geneva Convention."

Judiciary Chair Patrick Leahy (D-VT), joined by nine other members of the Committee, wrote a separate letter stating that "[w]e are deeply troubled by your refusal to state unequivocally that waterboarding is illegal during your confirmation hearing last week."

The letter noted that the U.S. prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners, that the Judge Advocates General stated that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions, and that Senator John McCain, co-author of the Detainee Treatment Act, stated "to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture."

ACS has released materials that provide background information on the role of the Department of Justice.