The United States Senate voted 53 to 40 to confirm Michael Mukasey as Attorney General.

Claire McCaskill was one of 40 “No” votes. Kit Bond was one of 53 “Yes” votes.

Senators Alexander (R-TN), Biden (D-DE), Clinton (D-NY), Cornyn (R-TX), Dodd (D-CT), McCain (R-AZ) and  Obama (D-IL) did not vote.

Let’s see what Kit Bond voted for:

MICHAEL MUKASEY ATTORNEY GENERAL CONFIRMATION HEARING 10/18/2007

MR. MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

Well, did anyone bother to ask Michael Mukasey if there had been any cases concerning the subject?

UNITED STATES of America, Plaintiff-Appellee, v. Carl LEE, Defendant-Appellant

No. 83-2675

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

744 F.2d 1124; 1984

…Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a “water torture” in order to prompt confessions to various crimes…

…At trial, Baker’s defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors — a “Nuremberg defense.” The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal.  In the course of Baker’s testimony, he identified Lee as a participant in the torture of several prisoners. Seven other witnesses also connected Lee with various torture incidents.  At the close of the evidence, the district judge severed Baker, and put the case of the remaining defendants to the jury.  Lee was convicted on three counts.  In this appeal he contends that Baker’s defense was in such conflict with his own that he should have been granted a severance at the be-ginning of trial. …

Do you think that if someone had been tried in federal court for a crime that it may, just may, have been a really bad thing?

Or maybe, he didn’t know “at the time” that torture was illegal, but that he did when he was indicted and convicted?

Did anyone notice that the court has no problem defining the procedure as torture? You’d think that a nominee for Attorney General or a United States Senator could have their staff do a little basic research.

And, there are numerous instances cited in the prosecutions for torture at the International Military Military Tribunal for the Far East [Tokyo War Crimes Trial] [The United States was a part of the prosecution: see Michael Mukasey and waterboarding for an excerpt from an affidavit describing the technique]

…MICHAEL MUKASEY ATTORNEY GENERAL CONFIRMATION HEARING 10/18/2007

SEN. SHELDON WHITEHOUSE (D-R.I.): So is waterboarding constitutional?

MR. MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): If water-boarding is constitutional is a massive hedge.

MR. MUKASEY: No, I said, if it’s torture. I’m sorry. I said, if it’s torture.

SEN. SHELDON WHITEHOUSE (D-R.I.): If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning — is that constitutional?

MR. MUKASEY: If it amounts to torture, it is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): I’m very disappointed in that answer. I think it is purely semantic.

MR. MUKASEY: I am sorry….

The United States Government, as a participant in the following proceedings, long ago determined that waterboarding constitutes torture. On Monday, December 16, 1946 the prosecution in the International Military Military Tribunal for the Far East [Tokyo War Crimes Trial] introduced an affidavit describing the treatment of internees at Changi Prison (numbers in brackets indicate the transcript page number):

[12,936]…57 internees were removed from Changi prison by the Military Police on or after 10 October 1943…..The Japanese were trying to establish that there was a spy organization in Changi prison which received and transmitted by radio telephony, which had established contacts in the to[w]n for the purpose of sabotage and [12,937] stirring up of anti-Japanese feeling, and which collected money from outside for this purpose. In fact, there was no spy organization, no radio transmission, and no attempt to promote anti-Japanese activities outside the Camp…

[12,939]…Usually interrogation started quietly and would so continue as long as the inquisitors got the expected answers. If, for any reason, such answers were not forthcoming, physical violence was immediately [12,940] employed. The methods used were:
(1) Water Torture [emphasis supplied]. There were two forms of water torture. In the first, the victim was tied or held down on his back and a cloth placed over his nose and mouth. Water was then poured on the cloth. Interrogation proceeded and the victim was beaten if he did not  reply. As he opened his mouth to breathe or to answer questions, water went down his throat until he could hold no more…

The judgment of the tribunal includes the following:

[49,664]…To indicate the prevalence of torture and the uniformity of the methods employed we give a brief summary of these methods.

The so-called “water treatment” was commonly applied. The victim was bound or otherwise secured in a prone position….

….There was evidence that this torture was used in the following places….

The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the far East in Twenty-two Volumes, New York: Garland Publishing, 1981.

I’m sorry, too, Judge Mukasey. For different reasons. If you don’t know what constitutes torture you can try reading sixty year old transcripts.

( – promoted by Clark)

My husband got annoyed enough by an article in this morning’s paper to e-mail the Post this letter:

As reported in the St. Louis Post-Dispatch on November 2nd, federal Judge Michael Mukasey, President George Bush’s nominee for Attorney General, says the controversial interrogation technique known as waterboarding is “repugnant,” but he is unsure that it is illegal. If Judge Mukasey would submit himself to this technique, he might have a decided opinion on its legality.

Respectfully submitted,

Cornelius Alwood

Claire McCaskill said that, under the circumstances, she was “torn” about the nomination and that she would wrestle with it over the weekend.  No wrestling needed, to our way of thinking.  If Mukasey won’t call waterboarding torture, what’s to think about?  As Pat Leahy, who’s on the Judiciary Committee, explained:  torture is illegal in this country and waterboarding is torture (has been considered so for centuries), so waterboarding is illegal.