Mukasey is trying to single-handedly change U.S. law when he suggests a “shocks-the-conscience” test to measure torture. The United States has ratified the United Nations Convention Against Torture, which makes it part of the supreme law of the land under the Constitution’s supremacy clause. That convention says that torture is never allowed, even in time of war. Mukasey refuses to admit that fact in order to shield his superiors from prosecution under the War Crimes Act, which defines torture as a war crime.
Commanders, not just the interrogators themselves, can be liable for torture if they should’ve known it would happen. As Lawrence Wilkerson, Colin Powell’s former chief of staff, said on National Public Radio, the policies that led to the torture and abuse of prisoners emanated from Dick Cheney’s office.
Marjorie Cohn, President, National Lawyers Guild San Diego
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