Attorney General Michael Mukasey sent a letter to the Senate Judiciary Committee regarding the interrogation technique known as waterboarding. Mukasey remarked that it is not an authorized interrogation technique, and that it “is not, and may not be, used in the current [CIA interrogation] program.” As in his confirmation hearings, however, Mukasey declined to absolutely declare the technique illegal:
The important part of that excerpt is this:
Indeed, I understand that a number of senators articulated this very concern in the fall of 2006, in the course of defeating an amendment that would have expressly prohibited waterboarding.
Essentially, Mukasey is telling Congress to declare the technique illegal if that’s what they want. He’s not going to do their job for them.
Mukasey politely adds that reasonable minds may disagree on the issue, which does not present an easy question, and that:
There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.
He goes on to say that opining on “generally worded legal provisions” absent concrete factual circumstances is not wise, and that his reluctance to do so now is precisely because there are no such circumstances. This is typical judge-speak for not providing advisory opinions, and is a bit weaselly. Mukasey could at least identify what some of the “closer questions” are where waterboarding may be deemed legal, and I expect that he is being drilled on such scenarios in the Senate today.
My guess is that Mukasey is vaguely referring to “ticking time bomb” types of situations. He seems to be reluctant to proscribe waterboarding altogether, at least publicly, because our enemies may use that information to withhold vital information:
The principle that one should refrain from addressing difficult legal questions in the absence of concrete facts and circumstances has even more force as to this question. That is because any answer that I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a classified interrogation program.
Frankly, Mukasey’s reasoning makes absolute sense, but in this climate of highly charged partisanship regarding any matters concerning the war, all discussion is framed in terms of absolutes. Today’s Senate hearing has nothing to do with practical legal matters. Instead it is a battle for moral superiority. More accurately, it’s a highly publicized display of how morally superior the Democratic leadership on the Judiciary Committee considers itself, especially vis-à-vis the Bush Administration. In short, it’s a dog and pony show designed to make Democrats look good, and Bush (and any who agree even tangentially with him) look bad. Waterboarding is merely the current foil.
In the end, we’ve learned that the technique is not available to the CIA for use in interrogation and that, at least in some situations, it is clearly prohibited by law. However, there maybe other scenarios (presumably involving imminent and catostrophic danger) where either (a) waterboarding is not necessarily illegal, or (b) we don’t want our enemies to know we won’t use it. The rest is just stentorian drama of little to no consequence or utility (i.e. Senators blathering away).
UPDATE: Andy McCarthy reports from the Senate hearings (emphasis added):
In the hearing today at which AG Mukasey is testifying, Sen. Specter — who believes waterboarding is torture — has pointed out that his opinion is not the end of the matter. He noted that the Senate had voted down a provision that would have made it illegal. He then pointed out that, quite apart from waterboarding, the use of torture in ticking-bomb exigencies has been approvingly discussed by President Clinton, the Israeli Supreme Court, Sen. Schumer, Prof. Alan Dershowitz, and others. (He left out Sen. Clinton, but could have included her too.)
Has Specter been reading ASHC?
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