Society of American Law Teachers Oppose Mukasey
The Society of American Law Teachers, an organization of American law professors, issued a statement opposing the nomination of Michael B. Mukasey to be U.S. Attorney General.
Every day we stand in front of the next generation of lawyers, explaining American jurisprudence and how its mix of idealism and pragmatism helped grow this great nation. We teach our students that the rule of law is paramount, that no one is above the law, and that even in times of war and great danger, allegiance to the rule of law must survive. As law professors, we believe in the rule of law.
The Attorney General of the United States is responsible for giving the President and others throughout the Executive Branch the legal advice they need to act lawfully. The Attorney General must believe in the rule of law and hold steadfast to that belief.
In two areas, we find Judge Mukasey to be an unacceptable nominee.
First, his refusal to acknowledge that an act as heinous as waterboarding is forbidden under United States and international law reveals that he either lacks the most basic understanding of law necessary to serve or he does not have the courage or principles to serve as Attorney General under this President. Waterboarding is cruel, inhuman, and degrading. Waterboarding is torture.
Contrary to what some in this administration have suggested, waterboarding is not simulated drowning. Waterboarding is drowning. The lungs actually fill with water. In fact, it is tantamount to a mock execution. As conducted in American interrogations, waterboarding occurs under the watch of a doctor, a psychologist, an interrogator, and a trained technical team. However, the presence of these witnesses makes the practice no less inhumane and no more legal under United States or international law. The doctor is there to measure the amount of water that enters the lungs to keep the drowning controlled. The psychologist is there to observe the stress reactions in the victim. And the victim believes that he will die from drowning unless he speaks.
Intelligence officers who have been waterboarded last an average of 14 seconds. One report claims that al Qaeda’s most resolute prisoner, Khalid Sheik Mohammed, lasted between two and two and a half minutes before begging for mercy.
A second reason for opposing Judge Mukasey's nomination to serve as Attorney General relates to his defense of the President's assertion of unbridled executive power, including the power to ignore laws enacted by Congress.
When asked if the President is free to violate a law, Judge Mukasey said, "That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the President to defend the country."
Judge Mukasey repeated his belief in an imperial presidency when he indicated that Congress might be powerless to prohibit the President from conducting surveillance without warrants. And once again, Judge Mukasey stated that he would be unwilling to prosecute contempt charges against witnesses who refuse to respond to Congressional subpoenas.
Taken together these statements suggest that Judge Mukasey will support President Bush's assertion of executive power beyond the power of Congress to control.
We have witnessed a Justice Department hijacked by politics, religiosity, fear, and secrecy. We have watched a procession of career officers leave the Department, replaced by partisans with a political agenda. We had been hoping that Judge Mukasey might bring professionalism back. However, his prepared testimony, and, more importantly, his answers to questions posed by the Senate Judiciary Committee, reveal that he does not possess the character necessary to become Attorney General.
It takes courage to be an attorney: to understand the law, to know its flexibility, to hold firm to the underlying principles of democracy, decency, and fairness. It takes extraordinary courage to serve as the Attorney General under a president who defies the rule of law. We can only believe that Judge Mukasey’s refusal to call waterboarding torture and his blind support for Presidential fiat are an attempt to protect this administration from the condemnation it deserves for its un-American and illicit “war on terrorism.”