Mukasey and the Magic Word

Unable to garner enough Republican support on Capitol Hill to once and for all formally outlaw "waterboarding" and other obvious forms of torture, and lacking the political will to take on the White House directly on the matter, Senate Democrats instead are now trying to achieve some measure of the same goal by pressuring Attorney General-nominee Michael Mukasey to agree that the practice is immoral and illegal. So far, he's signed off on the former claim but is withholding judgment on the latter.

Mukasey wrote to Democrats on the Judicary Committee yesterday that "waterboarding" seems "over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans." But he refused to weigh in on the legal question on the basis of "hypothetical facts and circumstances."

This statement came nearly three years after White House officials told Congress that it was up to the Justice Department to define torture. And we know that plan didn't work out so well.

Mukasey worked for two decades as a federal judge and, therefore, spent the better part of his professional career waiting to consider the whole record of evidence before rendering a decision. But he hasn't seen the full record here. As an outsider of this administration, he hasn't been briefed on the interrogation practices now in use. It's unfair and unrealistic for Senate Democrats to force him to promise now what he'll decide after he's been able to review the record.

Besides, what's a Mukasey denunciation of waterboarding really going to mean? He can swear up and down that he thinks it's illegal -- and he may even persuade the White House to grudgingly accept a tame legal memo sorta saying so. But that wouldn't stop the CIA from using the practice, if it thought harsh interrogation would stop a terror attack or otherwise generate critical intelligence. As long as President Bush and Vice President Cheney want to keep all options available - and as long as congress doesn't impose meaningful restrictions - the practice, in some form, will continue. With or without Mukasey's two-cents.

The Democrats shouldn't ask Mukasey to do their work for them. It's time to give him the chance to do the right thing. And if he fails? He's still an order of magnitude better than the chump he's replacing.

By Andrew Cohen |  October 30, 2007; 9:18 PM ET
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If we were electing a Pope, his statement that waterboarding is immoral might be adequate. We are, however, appointing an attorney general and the primary function he is to serve is to determin the legality or not of such things as waterboarding. Frankly, I don't care what he thinks is immoral or not, only what is illegal or not.

Posted by: Samson | October 31, 2007 09:27 AM

He's far better than Gonzalez so the Senate should affirm him? Sorry, that's an order of magnitude away from being acceptable. The U.S., led by Bush and facilitated by the Chump, have done immeasurable damage to one of America's key assets--it's moral standing. The Congress needs to show the world that the US can reign in an administration that behaves abominably, not simply cast a blind eye at it's worst behavior. Our attorney general should be able to take a clear stand against torture and its legality. It's imperative, if only as a small step, if the US wants to continue to lead in the world. The rest of the world, and worse even some of our allies, now associate torture not with China, not with Syria, not even with Saddam, but with the U.S. Let's be clear on this critical point that obfuscation and stonewalling are unacceptable.

Posted by: Seytom | October 31, 2007 10:15 AM

Is it really a matter of GENUINE dispute whether waterboarding is torture & therefore illegal? The US government has already executed Japanese military officials (just to cite one legal precedent) for engaging in this practice & other forms of torture. The fact that those officers were at war & that their whole way of life (including their religion) was in danger if they lost the war wasn't considered a valid defense by the US government. I know Bush & Cheney want to believe there is some kind of legal ground for their claims (just as they would like to believe that there is some kind of scientific dispute about global warming). But the fact of the matter, I believe, is that people who GENUINELY are interested in what's true (as opposed to people who are merely trying to advance a political agenda) hold that the US government has considered waterboarding torture for over a century. And we have signed treaties and made laws against torture. Nothing about human physiology changed on Sept. 11, 2001. We didn't stop having predictable sensory reactions to specific stimuli. & we didn't invent new ways to interrogate people -- we simply used methods we have previously not used because of their illegality.

Isn't the real issue with which Mukasey struggles the one about enforcement -- if he held that waterboarding is illegal -- as it has been for over a century, then what happens to people like Bush, Cheney, Rumsfeld, et al who surely have sanctioned its use? Isn't there some obligation (per the treaties we have signed) to put such people on trial for war crimes? & isn't it that constitutional debacle that makes Mukasey reluctant to comment -- the laws against torture have long been on the books -- what happens if we decide to enforce them after ignoring them for 6+ years? When we tried war criminals after WWII, we did not accept their claims that written memos from their governments made their actions legal. So the fact that Yoo wrote a pro-torture memo isn't a genuine defense, is it?

& the issue isn't just waterboarding or what Congress permits the CIA to do. When Ashcroft & Bush sent Maher Arar to Syria (& then while Arar was held in Syria at our behest, Bush made a speech about human rights abuses perpetrated by the Syrians), who can believe that Arar was not sent to Syria for the purpose of being tortured?

Once you look at the extent to which high ranking officials have been involved in promoting torture, you can see that enforcing our laws will be very messy indeed. If Congress were to pass a law tomorrow outlawing waterboarding, would that really clarify the issue? Or would it give the guilty parties the right to claim they could not be prosecuted because of the ex post facto provision of the Constitution? I agree the Justice Department and Congress might need to work together to get the laws enforced; I am less sure the longstanding anti-torture statutes were so ineptly written or so easy to misunderstand honestly that they require rewriting.

Posted by: tselis | October 31, 2007 10:29 AM

to tselis
Exactly! Thank you. Penelope505

Posted by: penelope505 | October 31, 2007 11:24 AM

My view is, if it was a tactic used by the Spanish Inquisition, then it's torture.

Waterboarding was.

It's torture.

It's not hard.

More alarming to me, Mukasey appears to buy the argument that Bush can just break laws when he thinks it's important.


Posted by: Egilsson | October 31, 2007 11:59 AM

Andrew, the question about whether waterboarding is legal has been *created*, lock, stock, and barrel, by the Bush administration -- it was never a question before. And it shouldn't be a question now (think Geneva Conventions, to which we are signatories). To cut Mukasey a break because he's better than Gonzales -- well, we can't imagine many nominees who wouldn't be. To cut him a break because he doesn't have the cojones to say waterboarding is torture ensures more of the same kowtowing to the murderous fools who brought us Iraq (and who may be intent on bringing us Iran as well). I'm disappointed in you, Andrew.

Posted by: lisatann | October 31, 2007 12:22 PM

Am I wrong in this understanding of law and its implications?

If waterboarding is torture and torture is a crime in the United States and a war crime under U.S. treaties there is an obligation to try those responsible and punish them. Therefore, the Attorney General's opinion in this case matters very much about what he will be doing over the next few years, which may include prosecuting American military and intelligence officials under these laws and treaties. It also means that the World Court or any other legal authority may have an obligation to try these individuals as war criminals.

If the U.S. Attorney General says that waterboarding is torture and the President or any other executive officer sanctioned this, then that would be an impeachable offense.

So I think there is a good reason for the AG and any AG nominee to tread very carefully in this area.

Posted by: Constitutionalist | October 31, 2007 12:38 PM

Andrew, how's the Kool-aid? You have to be kidding me. Better than the last guy? The last guy was so low he couldn't see over a crack in the sidewalk.

Posted by: Kool aid salesman | October 31, 2007 12:53 PM

"Mukasey worked for two decades as a federal judge and, therefore, spent the better part of his professional career waiting to consider the whole record of evidence before rendering a decision. But he hasn't seen the full record here. As an outsider of this administration, he hasn't been briefed on the interrogation practices now in use. It's unfair and unrealistic for Senate Democrats to force him to promise now what he'll decide after he's been able to review the record.

Besides, what's a Mukasey denunciation of waterboarding really going to mean? He can swear up and down that he thinks it's illegal -- and he may even persuade the White House to grudgingly accept a tame legal memo sorta saying so. But that wouldn't stop the CIA from using the practice, if it thought harsh interrogation would stop a terror attack or otherwise generate critical intelligence. As long as President Bush and Vice President Cheney want to keep all options available - and as long as congress doesn't impose meaningful restrictions - the practice, in some form, will continue. With or without Mukasey's two-cents."

I don't know where to begin. Ahh, thank you Hilzoy.

"There is an easy way for Mukasey to get around the fact that he has not been briefed on what the CIA did: just define waterboarding, say whether waterboarding so defined is torture, and add that not having been briefed on what the CIA did, he doesn't know whether or not what they did meets his definition. That Mukasey has not taken this obvious route suggests that he is not motivated by his own uncertainty, but by the desire to keep people he believes have engaged in torture from being punished for their crimes.

That we are even having a debate about this question, and that it is not a foregone conclusion that someone who claims not to know whether waterboarding is torture cannot possibly be confirmed as Attorney General, is a testament to the moral degradation of our country, and of our political discourse. ...

Imagine what we would think of a country where candidates for high office and nominees for the highest law enforcement position in the country had earnest debates about whether or not the rack was torture ("hey, I do stretching exercises before I go jogging, and it doesn't hurt me!"), or whether disembowelling living prisoners shocked the conscience ("I had my appendix out, and I'm doing just fine!") We would think that the people who said such things had utterly lost their humanity. Yet for some reason, altogether too many of our fellow citizens seem to think that it is perfectly acceptable for politicians and their appointees to have the same debates about waterboarding. I suspect that future generations, and the current inhabitants of other countries, will regard this the same way we would regard people who took it to be an open question whether the rack was torture: with abhorrence."

Posted by: sy | October 31, 2007 01:30 PM

The Bush administration clandestinely tortures Democrats, non-Taliban, liberals and patriots on American soil. Because the Democrat Assassination Program run by the dirty white house is classified, the legal basis is secret. It is exceedingly important that Bush is not provided with a legal basis to torture Islamiacs because he will continue to covertly abuse that authority to torture not only Crapistani dissidents of faith, but also the one thing he hates even more - white Americans of reality.

It is exceedingly important that Bush is not provided with a legal basis to torture the boogeyman because Bush's covert domestic programs are killing and ravaging America's finest. Any authority he is given to protect our nation from the infidels is abused in covert domestic programs directed against whistleblowers and intellectual property owners.

It may sound far-fetched but what is really happening to whistleblowers is far more extreme, sinister and brutal than the outing of Valerie Plame.

Posted by: Paul Wellstone | October 31, 2007 01:33 PM

Thank you too, Marty.

"172 Pages of Answers from Judge Mukasey


Like AG Gonzales, Mukasey is unable to say (pp. 124-125) whether it would violate Common Article 3 or otherwise be unlawful for enemy forces to subject (non-uniformed) U.S. detainees to 'painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution.' That's how far we've fallen.

On page 164, he writes in response to a question from Senator Graham that it is 'complicated' whether the President may order a violation of Common Article 3 that is not made criminal under the War Crimes Act 'because a non-self-executing treaty obligation stands on a different footing from an Act of Congress.' This is, I think, wrong, insofar as Judge Mukasey is suggesting that the President is not constitutionally obliged, under the Supremacy Clause and by his Take Care duty, to comply with the Geneva Conventions unless and until Congress enacts implementing legislation. As Justice Kennedy properly noted in Hamdan, Common Article 3 'is part of a treaty the United States has ratified and thus accepted as binding law.' Period."

If Mukasey is looking for someone to blame for his inability to make it through committee, he need not look anywhere but in a mirror. He has done a hell of a job making himself appear every bit as corruptible as Gonzo.

Posted by: sy | October 31, 2007 01:57 PM

It's an entirely separate question, what power the attorney general has to stop illegal practices like wiretapping and forms of torture already in use.

He's been briefed on the technique of waterboarding. He had time to prepare a researched statement on it. To retreat into some relativistic defense, is basically to say, It's legal sometimes, and I won't say when. In other words, the ends justify the means. You could make the same defense of absolutely any crime, including abuse of power, kidnapping and murder.

Posted by: Considerations | October 31, 2007 03:57 PM

Your take on the Mukasey fiasco is very well thought out and right on. If this man can not have the balls to state the obvious then he is unqualified for the position. Senator John McCain who was the victim of torture and is therefore an expert on the subject, has stated that waterboarding is torture and is illegal under the Geneva conventions. Enough said!

Posted by: dsigeorge | October 31, 2007 06:12 PM

On page 3 of his letter, Judge Mukasey states that government actions that "shock the conscience" are illegal, but obviously while he claims to find waterboarding as described repugnant, he can't decide whether it shocks HIS conscience. Would it be OK if performed with Perrier? Dasani? How much information does someone need?

And given the history of this Administration, how many OTHER repugnant things would he sign off on if they didn't also shock his conscience? And what kind of a conscience does he have if it is not already shocked?

The fact that this guy is not as scummy as Alberto Gonzales doesn't make him appropriate or suitable. What an administration -- the people who can claim with a high degree of legitimacy that "they were just following orders," a defense rejected at Nurnberg, are the ones who get punished, whereas the people issuing the orders get off scot-free.

A truly disgraceful and shameful aspect of this nomination is that it is STILL being considered ... and considered seriously.

Posted by: EdA | October 31, 2007 06:40 PM

If it is OK for the US to waterboard foreigners, is it OK for foreigners to waterboard Americans?

Mukasey is not being asked to consider a hypothetical situation. because this form of torture is currently being employed by the CIA. If Mukasey can't make a decision on this then how ill he handle manging an office of lawyers who have to provide advice to the government in a speedy manner?

None of you have said what the CIA should do if it kills someone by waterboarding. None of you have said that if they have a victim who turns out to be innocent how the CIA officers should be punished and how the victime should be compensated. Is anyone suggesting that torturers should escape scrutiny and accountability. What happens if these torturers do not have any conscience and they enjoy the opportunity to torture?

Torture breeds torture. Bush has invited the world to dumb down its understanding of conventions and to treat soldiers of all colours badly. Captured US troops will end up paying a heavy price for this violence which Bush has initiated.

Once agin the US has got it wrong. I suspect that Bush has watched too many TV shows and likes US films in which the powerful guys push around the weaker guys.

Posted by: Robert James | October 31, 2007 07:03 PM

oh man...I hope I have all your names and addresses when the feces hits the fan. because you will be partially accountable AND responsible. waterboarding torture? this ever happen to any of you? it has to me. I survived quite well. it is a controlled technique to extract information just like all the others. while it is fun to run with high minded abstractions (all the while...just like the immigrants who cut your lawns, drive your taxis, and take care of your kids...never, ever getting your hands dirty yourselves) the real world the lines aren't as clearly drawn; some techniques are beyond the pail..some have to be done to get the information..spineless liberal utilitarians whould understnad this better than most. the search for an immutable standard is a chimera.

I know one thing...this all leads inexorably in one direction...if you arenn't sure in the field you do one of two things...covertly hand the captee over to an allied partner with broader rules.....or kill the mofo on the spot. don't think for a moment it can't be done out of site with impunity. that is what will happen if the situation becomes untenable for those you blowhards send to do the dirty work. you know the 99% of you who feel intelligence and military service is for someone else's kids...ever since the advent of all volunteer forces.....even though you laughably and contemptably "support the troops"

btw.....keeping a ledgeer on all the beheadings in the Middle East? I ahve yet to see one shred of moral outrage and demand for justice in my lifetime from any of you moral frauds.

you are all too obvious.....

Posted by: lmao | October 31, 2007 07:57 PM

Insisting that an A.G. nominee acknowledge that waterboarding is torture is hardly inappropriate. It is unprecedented, only because Bush and Cheney have uniquely disgraced America by engaging in torture--and then sought to avoid the onus for it.
There are Republican lawyers--I know some--who will state candidly that waterboarding is torture. If CIA agents have relied on Addington-Gonzales-Yoo memos as authorization to torture suspects, prosecutorial discretion exists to determine if and to what extent they and those above them should be prosecuted.
Waterboarding has been a major and enduring issue for well more than a year, presenting legal, ethical and political issues that cannot possibly have escaped the active mind of Michael Mukasey. Aside from the ghastly stain inflicted by Bush and Cheney on our national honor, one of the saddest aspects of this sordid tale is the sinking of a man like Mukasey, on his second day working for Bush, into telling the Senate Judiciary Committee that he was unfamiliar with what waterboarding is. That's perjury, just as much as if Alberto Gonzales said it. It raises this question: Can anyone work for Bush and retain his honor?

Posted by: Glenn Becker | October 31, 2007 08:59 PM

To Imao
If you actually did fight on our side, I do hope you are safe at home. And I do hope you don't get deployed again. No, wearing the uniform of the United States of America is not a license to kill. When you sign up, you take an oath and take on responsibility. You may personally wish to reject the responsibility part of it or may be incapable of understanding how serious that part is. But you are at risk legally if that's the path you go down.
If we have to accept what you depict in part as a consequence of having an all-volunteer army, we need a draft. I think however, there will be a fair number of combat veterans from this and past wars who will disagree with you. We do not need an army of "good Germans" who claim to not know or claim to have "just followed orders" to justify atrocities. Check out history. We prosecute war criminals. What would it take for someone who thinks as you apparently do to be used in a like manner under "extraordinary circumstances" against our own people, right here at home.
No one could ever say that war is civilized. We do attempt, however, as civilized societies, to impose some limits, meager as they are. We in this country hope our soldiers can preserve their own lives but at the same time expect them to understand and follow the limits we impose upon them to the best of their ability. Under penalty of the law.
And in case you want to scoff at me, because you may think I'm just some p*ssyass liberal, go knock on the door of Sen McCain. Maybe he can knock some sense into you.

Posted by: Kooch | November 1, 2007 12:29 AM

Don't you think part of the problem is the exclusive emphasis on waterboarding? The one person on whom the US government is widely believed to have practiced this technique is almost certainly guilty of having caused the US harm, although probably not guilty of everything he confessed to as a result of this practice (which -- given the extent of the false confessions -- was probably more revenge-driven than performed for genuine intelligence gathering). There are data that show that people who support the death penalty do so because they believe those executed MUST be guilty. I suspect the same is true for the pro-torture crowd -- they think it's all right because they assume that whoever gets it MUST deserve it. They do not consider that the same highly fallible administration that hyped the case for WMD, that brushed off the buildup of the Iraqi insurgency, & that assured us the Iraq war would be self-financing are the ones deciding who gets tortured. To get widespread public reaction against Bush's torture practices, shouldn't we look at the ENTIRE pro-torture policies of the Bush Administration? At the behest of Bush & Ashcroft, the Syrians electrocuted Maher Arar's genitals. Does Mukasey think that's torture? & Arar had done nothing to the US -- he was tortured due to mistaken identity. Does Mukasey think the president has the right to send law-abiding Canadian citizens to nations that are known to torture people? If Mukasey thinks electrocuting someone's genitals constitutes torture (or does he need to learn more about the specifics of how that is done?), what kinds of legal actions does he think it appropriate to pursue against those who sent Arar to Syria? Can Mukasey exclude possibly prosecuting former Attorney General Ashcroft? Or Ashcroft's then-boss?

The fact is that the press & Congress have been very low-key in publicizing the nature and extent of Bush's torture policies. The Detroit area is so close to Canada that the CBC news appears on local channels. The Arar story was consistently big news in Canada (to the point that Arar's wife, who effectively publicized his plight, was talked about as a possible political candidate). Yet on the Detroit side of the river, the news media said nothing. Even when Canada refused to join us in the Iraq war & the Canadians cited Arar's torture as one reason they did not trust us, the American press said virtually nothing about Arar. I don't think most Americans understand the breadth of the Bush torture policy or the full extent to which we are despised abroad for it. And unless we have government officials who are really willing to cleanse our system of this vicious rot -- in its entirety -- we will remain despised and isolated.

Posted by: tselis | November 1, 2007 12:20 PM

tselis, you get to the very heart of the issue, or at least one of the ventricles. I like to think that "The Founders" so often referred to in discussions surrounding Constitutional issues had a very important and largely ignored point of view. They did not trust government and did not mean to leave it up to Man's inherent honesty or decency to ensure that this nation would be governed in as honest and decent a manner as humanly possible. And I like to believe that they knew humankind well enough to realize that we would still be pretty far off the mark (even though better off than most), despite their efforts at balancing out the powers of the three branches.
We must stand in the way of torture of anyone, on the basis of our being a principled society. I hope we recognize that allowing torture as a "tool" in "limited" situations opens the door to torture in the more general case. I don't trust government with that power. What would it take for someone to read what many of us have said on this website and accuse some of us of being disloyal, offering comfort to the enemy, and demanding to know what else we have said and to whom? One doesn't have to be a "bad guy" to be accused.

Posted by: Kooch | November 2, 2007 01:15 AM

Captured terrorist leader Sheik Kahlid Mohammed cracked within 5 minutes of being waterboarded and revealled everything he knew. This prevented hundreds of planned future Al Qaeda terrorist bombings, enabled us to capture or kill more terrorists before they could kill us, and saved thousands of innocent non-Muslim peoples lives. The only ones who would be against the use of waterboarding a terrorist like Sheak Kahlid Mohammed, are the terrorists or the friends of terrorists who are looking out for their interests. It's a shame that the liberal Democrats are making a campaign issue out of this all because they hate President Bush more than they hate bin Laden and his terrorist group Al Qaeda. Liberal Democrats are not only risking the lives of Americans who would bear the brunt of any future sucessfull 9/11-like attack, they're putting their party interests above our countries.
Liberal Democrats=phony Americans!

Posted by: madhatter | November 2, 2007 12:49 PM

I feel for Judge Mukasey. After a career of making Up and Down decisions, he's being played by a White House that wants everything blurred.

What's the legal term for counsel who knows his client is about to commit a crime?

It seems to me that that's where the White House has put him. I just wonder how long he can live with himself playing patsy.

Posted by: DC | November 2, 2007 03:23 PM

madhatter, a source for the "Sheik Kahlid Mohammed cracked within 5 minutes of being waterboarded" comment would be good.

Posted by: DC | November 2, 2007 03:26 PM

Yeah, madhatter, maybe it would help if you read previous posts. I refer you to tselis. Not that I expect it to change your mind.
Worth it to torture how many people who may know nothing to get info from one? That of course is only one of the points of debate here.
If we are America, torture is out, period, end of discussion.

Posted by: Kooch | November 2, 2007 04:33 PM

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