ACSBlog: The Blog of the American Constitution Society

In Brief:

• Judge Mukasey's nomination to serve as Attorney General gains crucial support
• Capital punishment may be becoming cost prohibitive
• New proposals for Guantanamo detainees
• Waterboarding and war crimes

Mukasey Nomination

While acknowledging serious concerns regarding his views on interrogation techniques, Senators Dianne Feinstein and Charles Schumer both announced on Friday that they would support Attorney General nominee Michael Mukasey, likely assuring his confirmation.

Capital Punishment

The rising costs of providing for an adequate defense in capital punishment cases raises the prospect that states unwilling to pay may be unable to conduct executions, Shaila Dewan and Brenda Goodman reported in the New York Times. The authors note that better-financed public defender systems reduce the number of capital cases. An article by Elizabeth Weil notes that the Supreme Court has effectively issued a moratorium on execution by lethal injection until after Baze v. Rees has been heard.

Detainee treatment and torture

Bush administration officials, perhaps in an attempt to preempt an unfavorable ruling by the Supreme Court, may change procedures and allow federal judges and not military officers to decide whether Guantanamo detainees are properly held, and may further seek to close the Guantanamo detention facility and transfer detainees to U.S. soil upon approval by Congress of legislation that would permit the government to hold detainees without charging them until "the end of hostilities," the New York Times' William Glaberson reports.

Former acting assistant attorney general Daniel Levin, who as part of his responsibilities for reworking the administration's legal position on torture underwent waterboarding and concluded that it could constitute illegal torture unless performed in a highly limited way and with close supervision after undergoing the procedure, was forced out by Attorney General Gonzales before he could complete a memorandum that would have imposed tighter controls on specific interrogation techniques, ABC News reported. Evan Wallach notes that the United States prosecuted Japanese military officials for waterboarding U.S. soldiers during WWII as part of the Tokyo war crimes trials.