Waterboarding is torture (?)

February 7, 2008 at 9:54 am | Posted in law school, politics | 1 Comment

A few weeks ago I received an email from the dean of my liberal law school proudly announcing that our commencement speaker would be Attorney General Michael Mukasey.  I had no doubt that the dean had flexed his conservative muscles to not only secure the AG, but to get this speaker approved by the committees-that-be (arguing, perhaps, that a speaker from the current administration would bring some political balance to the proceedings).  At first, I was somewhat pleased that we’d have a high-profile speaker, as opposed to a state representative or something.  But our student body (as well as the faculty) is proudly progressive (taking the lead in cases such as FAIR v. Rumsfeld, for example.)  Would Mukasey incite the same anger and controversy that Condi Rice did two years ago, when she spoke at the university’s main graduation ceremonies?  (Many faculty members actively boycotted the speech.)  When May 23 rolls around, will Mukasey really be up on that podium?

We’ll see:  The story was picked up by the law student’s guilty pleasure, Above the Law, and some students have started a Facebook group called Waterboarding IS torture (I don’t know if this link will work).  Apparently, neither the faculty nor the students had any input on the selection (actually, not really surprising considering the ideological gap between the dean — whom, I must point out, I had for Con Law and nevertheless really admired as a teacher — and the students and faculty.) 

As one professor so eloquently stated in an email to faculty:

Substantively, if you think for just a moment about what figure in the current Administration is most identified with its equivocation on questions of the legality of degrees of torture, isn’t it Mr. Mukasey – both back in his October confirmation hearing testimony and subsequently in his unspecific statements sidestepping judgment on waterboarding and similar practices, surely one of the most distressing ethical and legal issues of recent years?No matter how decent a man Mr. Mukasey may be personally, how solid his professional career, or how elevated his current position – and without regard to the issue of bringing in more conservative figures to counterbalance the school’s historically progressive stances – wouldn’t it seem quite problematic to bring Mr. Mukasey here at this particular moment in time? If it weren’t for this issue, he would certainly be a laudable choice. But for a school that asserts a special commitment to issues of morality and ethics in its education of future lawyers, to choose at this point in time to bestow honors to the most prominent symbol of one of the most legally and ethically troubling national policies in the past 50 years would have seemed not just inappropriate, but unthinkable. It cannot avoid transmitting a troubling symbolic message. What will our students, our alumni, our University, the nationwide law school academy generally, and the public’s opinion of our school make of this symbolic choice as the weeks grow closer to our graduation ceremonies?

In my legal ethics class, my professor (a former Supreme Court clerk for Chief Justice Warren Burger and perhaps the sharpest legal mind I have yet encountered) pointed out that had Mukasey come right out and and said that waterboarding was torture, he would have undermined the work of the entire Department of Justice, throwing the administration and its handling of the war into chaos.  Nevertheless, I can’t imagine that the dean didn’t think through the implications of inviting Mukasey to speak.  If Mukasey doesn’t comment on the torture memos, he’ll be sidestepping the elephant in the room and will look weak, ineffective, and ingenuous.  Moreover, I agree that inviting someone at the center of one of the most fraught controversies of the Bush administration is almost a slap in the face to those truly concerned about legal ethics. 


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  1. I bet Sharon’s organization (humanrightsfirst.org) would have something to say about this!

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