The Senate Judiciary Committee vote on Michael Mukasey’s attorney general nomination is scheduled for Tuesday, so let’s review where that stands.
When President Bush nominated Michael Mukasey as attorney general his distinguished career was offered as guarantee of his integrity and independence. … Then Mukasey was questioned about whether waterboarding — a technique of forced drowning first used in the Spanish Inquisition and by orders of the Bush administration applied to accused terrorist detainees — is torture. At great length, the nominee feigned lack of knowledge: “I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that.” Questioned further, he said, “If it amounts to torture, it is not constitutional.” But he would not say whether it was torture.
All 10 Democratic senators on the committee sent Mukasey a letter asking him to clarify whether waterboarding is torture. On Oct. 30, the nominee replied in four convoluted pages. He called waterboarding “over the line” and “repugnant” on “a personal basis,” but adopted the lawyerly pose that it was merely an academic issue: “Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical.”
Why the obfuscation? Blumenthal continues,
Mukasey is not a free agent. He had been strictly briefed and in his testimony was following orders. He has avoided calling waterboarding torture because that is consistent with the administration’s position and past practice. Mukasey’s refusal to disavow waterboarding reveals his acceptance of his assignment to a secondary role as attorney general, an inferior agent, not a constitutional officer, to certain political appointees in the White House.
Those who are responsible for waterboarding have defined and dictated Mukasey’s evasions. His acquiescence demonstrates that no one in his position could take a contrary view to that of David Addington, Vice President Cheney’s former counsel and now chief of staff, who directed and coauthored the infamous memos by former deputy assistant director of the Office of Legal Counsel John Yoo justifying torture, and charged the current acting director of OLC, Stephen Bradbury, to issue new memos rationalizing it.
When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off “our enemies,” for example), but the key to his rationale appears to be his expressed fear that the attorney general’s public acknowledgment that waterboarding is torture would place interrogators in “personal legal jeopardy.”
By this logic, he can’t come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is “steering clear of a potential legal quagmire for the Bush administration” by not answering the question.
Back to Blumenthal:
In his confirmation hearings, Mukasey has proved he will dance as the strings are pulled. His positions on waterboarding express precisely the relationship between the Bush White House and its Justice Department. Mukasey’s testimony telegraphs that the White House will continue to call the shots. He has already ceded the essence of his power even before assuming it. His vaunted integrity and independence have been crushed, short work for Addington.
The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It’s for that reason the OLC’s ability to issue â€œfree get-out-of jail cardsâ€ made Goldsmith’s tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn’t have nominated someone who might take them back.
Waterboarding is torture and was prosecuted as such as far back as 1902 by the United States military when used in a slightly different form on insurgents in the Philippines. It meets the definition of torture that existed in American law and international treaties until Mr. Bush changed those rules. Even the awful laws on the treatment of detainees that were passed in 2006 prohibited the use of waterboarding by the American military.
And yet the nominee for attorney general has no view on whether it would be legal for an employee of the United States government to subject a prisoner to that treatment? The only information Mr. Mukasey can possibly be lacking is whether Mr. Bush broke the law by authorizing the C.I.A. to use waterboarding â€” a judgment that the White House clearly does not want him to render in public because it could expose a host of officials to criminal accountability.
So far, three of the ten Democrats on the Senate Judiciary Committee — Dick Durbin (IL), Sheldon Whitehouse (RI) and Joe Biden (DE) — have said they will vote against advancing the nomination to the full Senate. The other seven Dems have not said how they will vote. The nomination has become a problem for Chuck Schumer, who had suggested Mukasey as a consensus nominee to the White House and declared two weeks ago that he should be confirmed. More recently, he has been noncommittal.
None of the Republicans on the committee, including Arlen Specter, has made any serious noise about not supporting the nomination. It will probably take the “no” votes of all ten Democrats to stop the nomination. Here are the names of the committee members. If any of these critters is your senator, be sure to let him/her know what you think.
See also Rosa Brooks, “Mukasey’s black magic on torture.”