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Today's Must Read
Last time around, Attorney General Michael Mukasey had more than a little trouble telling the Senate Judiciary Committee whether waterboarding is torture. "If it amounts to torture, then it is not Constitutional" just wasn't cutting it.
But this time, he's coming ready. He laid it all out in a letter to the panel last night. When he sits down for his hearing this morning, he'll say... I can't tell you if it's torture, because we're not doing it now anyway and there's no use talking about it if we're not even doing it -- which doesn't mean that we won't do it, but we really probably won't.
Or as he puts it, if I may quickly summarize his 3-page letter:
"[I] have concluded that the interrogation techniques currently authorized in the CIA program comply with the law.... I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not be, used in the current program.... It is precisely because the issue is so important, and the questions so difficult, that I, as Attorney General, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never present themselves in the future."
The clear intended message here for the Democrats on the panel is that Mukasey would never approve waterboarding, but they're not going to get him to say why. Somehow I don't think they'll be completely satisfied. Especially if he repeats this line from his letter:
"There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question."
So -- what's up? Marty Lederman, a former lawyer in the Justice Department's Office of Legal Counsel, speculates that what's really driving Mukasey's refusal to address the question is that "such a repudiation would undermine the legal basis for other of the 'enhanced' CIA interrogation techniques" -- techniques such as stress positions, inducing hypothermia, sleep deprivation and the like.
Remember also that Mukasey has expressed confidence in Steven Bradbury, the current head of the Office of Legal Counsel, who has reportedly approved all these techniques (and waterboarding). And in his statement today, Mukasey seems to be saying above that he's approved them too (minus waterboarding). He supports the current system and doesn't want to rock the boat. With the most controversial technique eliminated, all this unwanted scrutiny will hopefully recede.
We'll be providing live updates of Mukasey's hearing, which starts at 10 this morning.
Comments (18)
chabuka wrote on January 30, 2008 9:56 AM:Whats the statute of limitation on torture..?..Murder has no statute of limitations..how many died while being "interrogated"?
hope4usa wrote on January 30, 2008 10:01 AM:There is no statute of limitation for war crimes.
Crust wrote on January 30, 2008 10:03 AM:Mukasey didn't even really say that we probably won't waterboard again. He just said we may not. In other words, he didn't weigh in on the probabilities. For example, his statement -- at least as quoted above -- is perfectly consistent with him having a high degree of confidence (but not certainty) that the Bush administration will waterboard again in the near future. (Not saying that is his state of mind. Just an example of what's possible given his statement.)
Bottom line: Mukasey is saying they may waterboard again, under certain (unspecified) circumstances. If those circumstances come up there surely won't be time for quiet reflection. Which is why it's important to sort out now whether waterboard is torture. Or at least it's important if you think it's important that America not torture.
Poopie wrote on January 30, 2008 10:03 AM:So he dosen't want to address the past or past wrongdoings? Some Attorney General!
Crust wrote on January 30, 2008 10:09 AM:chabuka, hope4usa: But don't forget about executive clemency. I fully expect Bush to issue some pretty sweeping pardons when he's about to leave office.
That's one reason the FISA fight over retroactive telecom amnesty is so important: Because the telecoms are accused of civil offenses not felonies, they are not subject to presidential pardons. It's ironic, but our best -- perhaps last -- hope to shine light on Bush era surveillance abuses within the next few years is not via felonies committed under FISA but via civil offenses. That is the fulcrum that could turn this out into the open. The Bush administration understands this and that's why they've declared that telecom immunity is their top priority.
danger wrote on January 30, 2008 10:25 AM:Crust wrote on January 30, 2008 10:09 AM:
chabuka, hope4usa: But don't forget about executive clemency. I fully expect Bush to issue some pretty sweeping pardons when he's about to leave office.
As the ultimate 'go f--- yourself', future President Obama should issue a signing statement undoing and not recognizing any of Bush's pardons.
I mean, it's essentially the power Bush and Cheney have invested into the office anyhow, so I don't see why he couldn't do that.
JohnJ wrote on January 30, 2008 10:38 AM:Oh come on; they just changed the name from "waterboarding" to something else, like "moisture questioning". End of problem.
JohnJ wrote on January 30, 2008 10:41 AM:Somehow I don't think pardons from Hitler would have influenced the war crimes trials (but Hitler pardoned me for killing all those Gypsies. Chimpy's pardons would just be a DIRECT crime themselves.
Sorry, I'll try that again:
Somehow I don't think pardons from Hitler would have influenced the war crimes trials ("but Hitler pardoned me for killing all those Gypsies, you can't hang me"!)
Chimpy's pardons would just be more DIRECT crime themselves.
JohnJ wrote on January 30, 2008 10:44 AM:I give up. I can't type or read this morning; I guess I'll just vote a GOP ticket.
Anonymous wrote on January 30, 2008 10:52 AM:"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
brian wrote on January 30, 2008 10:58 AM:"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."
Through the Looking Glass
I see Bradbury is still running the OLC. He has never been confirmed by the senate.
He is deciding what is legal and what is illegal - a position more important than the Supreme Court, we learn.
The nation's 'top law man', Mukasey, is vague about what is legal and what is illegal.
The law is what the white house says it is. Disgusting. Alarming.
Restore the constitution.
Crust wrote on January 30, 2008 10:58 AM:danger: The power of executive clemency is absolute and unrevisable, at least so far as the American legal system is concerned. Though I don't think Bush can pardon himself. (I think it was Brad DeLong who speculated that Bush may resign on Jan. 19, making Cheney briefly president and allowing Cheney to pardon him. Still sounds far fetched to me, though many things that once sounded far fetched have come to pass, so who knows.)
Of course, as JohnJ hints, Cheney, Rumsfeld, etc. might want to be careful where they travel in the future as another jurisdiction may attempt to try them for war crimes.
Liam wrote on January 30, 2008 11:11 AM:It reads like he has tortured the language.
theWalrus wrote on January 30, 2008 11:28 AM:We've slipped off the slippery slope and are heading to the murk(ase)y bottom.
See you in the gulag!
Redshift wrote on January 30, 2008 12:25 PM:So the Attorney General isn't going to concern himself with crimes that took place in the past?
I don't think his department's crime stats are going to look too good if they prosecute people who are caught in the act...
parrot wrote on January 30, 2008 1:47 PM:Ah, the theory that the law is a "convenience" that can be dispensed with when one is afraid. Sounds like a lack of insistence in following the law...which is not too surprising from the Bush gang.
Mark F wrote on January 30, 2008 2:29 PM:The past is the past. Let's just be done with it, shall we? "Your Honor, I know I stabbed my wife to death with a screwdriver, but that was yesterday. I no longer have a wife and I seem to have lost the screwdriver as well, so I believe questions about her murder are no longer relevant. I suggest we stick to current issues."
Roberta wrote on January 30, 2008 3:01 PM:Remember the ambiguity of Mukasey's having a picture of George Orwell (a.k.a. Eric Blair) in his office.
Is it because he wants to remind himself of the dangers of manipulating language to create a distance between words and their true meanings, or is it to reinforce how effective linguistic manipulation can be in lulling a populace into allowing a government to act without questioning the actions?
This guy's face doesn't provide the easy tells Gonzales's did. Too inscrutable. I guess the truth is between him and his god.