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.
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