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Mukasey on Waterboarding: "It is Unresolved"
Sen. Dick Durbin (D-IL) picked up where Sen. Joe Biden (D-DE) left off. Does the attorney general really think that it depends on the circumstances when you can waterboard somebody?
Here's the video:
Durbin pressed the point that the Senate had, on a broad bipartisan basis, prohibited "such practices with the McCain amendment" (the 2005 Detainee Treatment Act).
But the Senate had also "voted down a bill that would prohibit waterboarding," Mukasey replied.
"You still think that the jury is out on whether the Senate believes that waterboarding is torture?" Durbin wanted to know.
"The question... is whether the Senate has spoken clearly enough in the legislation that it has passed...."
"Where is the lack of clarity in the McCain legislation?"
The "words of the legislation... are words that are general and upon which people on both sides of the debate have already disagreed. To point to this language or that language, it seems to me, is to pick nits at this point. People have disagreed about the generality of the language and said that it can be read two ways."
Finally, it all came to a head. Durbin wanted to nail him down. After Mukasey proved a little slippery -- emphasizing the scenario where waterboarding would "shock the conscience," i.e. doing it to get information of only "historical value" -- Durbin finally backed him into a corner.
So is it lawful to waterboard someone if doing so might save a large number of lives?
"Those circumstances have not been set out. That is not part of the program. We do not know concretely what they are, and we don’t know how they would work."
So when it comes to non-military personnel (i.e. CIA personnel), that is still unresolved?
"It is unresolved... because I have not been presented with a concrete situation."
Update: Here's the transcript:
DURBIN: When I first met you in my office, I asked you if you would tell me who your heroes were. And you told me that you keep a picture of George Orwell on your office wall because of his essay, "Politics and the English Language," which I had not read.And I got a copy and read it. It's dense. It's profound. I find it difficult to understand, but I respect you for looking at it carefully and admiring his thought process.
In that essay, Mr. Orwell is critical of misleading political speech and says, "As soon as certain topics are raised, the concrete melts into the abstract."
DURBIN: I would say, Mr. Attorney General, on the subject of waterboarding, that some of your words have melted into the abstract.
The last time that we met here was in a similar circumstance with the room half empty, and I asked a question which continues to be asked to this day about waterboarding. And I am still troubled as I listen to your answers.
Let me try to be specific and ask you three specific questions.
The first is this: You say in your letter to the committee, "Reasonable people can disagree," in reference to waterboarding. So, could you tell me who those reasonable people might be who disagree? Can you cite any court cases, legal scholars and others?
You referred to them as "people of equal intelligence, good faith and vehemence," I believe. So, I'd like to know who you're going to cite as the reasonable people who disagree that waterboarding is not torture.
The second thing I'd like to ask you, when you replied to Senator Biden, you suggested that waterboarding, under certain circumstances, would not shock the conscience. And I think the reference was made to nuclear weapons and discovering nuclear weapons.
If that is the case, can you explain to me why our government has now discontinued and prohibited this form of interrogation if there are circumstances which, in your mind, could justify it?
And the third question: You said that your lack, or your refusal or your unwillingness to take an unequivocal position on torture couldn't jeopardize anyone because our troops all wear uniforms. And so, they're protected against torture under existing conventions and statutes.
But, certainly, there are American personnel -- special forces, CIA agents, employees of the State Department -- who could be in jeopardy or danger who don't wear uniforms if there is uncertainty about the U.S. position on the issue of waterboarding.
MUKASEY: With respect to your first question you asked -- Who are the reasonable people who have disagreed about whether waterboarding is torture? -- there have been people in this chamber who have disputed whether under certain circumstances it wouldn't be legal for the president to engage in techniques described by at least one of them as torture, but then pulled back, in order to obtain information to save American lives.
MUKASEY: And those are matters of record.
DURBIN: Mr. Attorney General, this body, in this chamber, if you refer to the Senate...
MUKASEY: I'm referring to the Senate.
DURBIN: ... has voted clearly, on a bipartisan, overwhelming vote, that we would prohibit such practices, with the McCain amendment.
So if you're going to rely on the chamber, the chamber's expressed its will in exactly the opposite position you've taken.
MUKASEY: And the chamber, on another occasion, declined, voted down a bill that would forbid waterboarding.
And there were people, in the course of the debate on the measure that you mentioned, who said that the language was so general that it would open things up to all sorts of behavior that they considered objectionable and cruel, which I would think would include waterboarding, because they are people who say that.
DURBIN: If the Detainee Treatment Act, I think, is clear, in terms of the law of the land and the expression of this chamber, and even went so far as to offer amnesty, immunity to employees of the government who have been engaged in it, you still think that the jury's out on whether the Senate believes that waterboarding is torture?
MUKASEY: The question is not whether the Senate is out on this or that technique.
MUKASEY: The question is whether the Senate has spoken clearly enough in the legislation that it has passed and that the Congress at large has passed and that the president has signed, which is all anybody's really got to work with.
DURBIN: So, where is the lack of clarity in the McCain legislation?
MUKASEY: The words of the legislation, of all the legislation that's thus far been passed, are words that are general and upon which, as I said, people on both sides of the debate have already disagreed.
To point to this language or that language, it seems to me, is to pick -- is to pick nits at this point. People have disagreed about the generality of the language and have said that it can be read two ways.
DURBIN: I might just say that, as the chairman has noted here as a matter of record, Senators McCain, Warner and Graham, the lead sponsors of this legislation, have said that under the Military Commission Act waterboarding is a war crime. It is unequivocal.
How do you -- at this moment in time, you have employees of your department in Iraq counseling the police and army there not to use waterboarding and torture. And their standard, unfortunately, at least leading up to this moment, has been that it depends on the circumstances.
Do you see the problem with your ambivalence on this issue when it comes to setting a standard that we are trying to teach to the world, a standard we want our own people to be protected by?
MUKASEY: The standards -- the problems posed by what you call ambivalence, which I don't think is really ambivalence, but rather a due caution for the reasons that I outlined, are already matters of record.
I want to answer the second question, because it suggests that I said I would...
DURBIN: It's on the Biden question.
MUKASEY: I'm sorry?
DURBIN: It was on the Biden -- Senator Biden's question. Is that it?
MUKASEY: No. It was your second question, which I -- regrettably, my notes aren't...
DURBIN: The two other questions related to Senator Biden's question about shocking conscience.
MUKASEY: Right, that I said waterboarding would not shock the conscience. What I described was a situation in which it would shock the conscience.
Insofar as it being a relative standard, that was something that was put in place by the person who wrote the decision in which that first appears. So that wasn't something that I put there.
DURBIN: So, for clarity, then, I assumed that -- correct me, please -- that you were arguing that the use of such techniques to discover nuclear weapons would not shock the conscience.
MUKASEY: No. What I was saying was that the use of such techniques to discover information that could not be used to save lives and was simply of historical value would shock the conscience.
DURBIN: Well, that's half the answer. So let's go to the other half. What about the circumstances where the information would save lives, many lives?
MUKASEY: Those circumstances...
DURBIN: Would that justify it?
MUKASEY: Those circumstances have not been set out. That is not part of the program. We don't know concretely what they are. And we don't know how that would work.
DURBIN: Under the military standards, clearly -- military interrogation standards, they are not interested in the danger. They have just said, unequivocally, that their personnel cannot engage in this technique.
So you're saying that, when it comes to the nonmilitary, that is still unresolved, as to whether they can use these techniques...
MUKASEY: It is unresolved.
DURBIN: ... in your mind?
MUKASEY: Because I have not been presented with a concrete situation. And I would...
DURBIN: I've gone over my time, and I apologize, Mr. Chairman.
Thank you, Mr. Attorney General.
Comments (24)
steve wrote on January 30, 2008 1:44 PM:Can we waterboard his ass? If not can we impeach him? WTF, can we impeach Pelosi? Damn, is there any justice for these people? I know if I run a red light I will get instant justice...why not our ELECTED officials!
Thucydides JR. wrote on January 30, 2008 1:46 PM:Well, here's the kicker -
If they can't get questions answered about something that supposedly is LEGAL(?) and that they have an oversight duty to investigate, then how in the name of Capt. Kirk and Gandhi will they get answers about something they make that is illegal?
These guys are gonna game the system, and do what they want. Why do our "esteemed" Senators seem to think they won't, after all this time?
If you want to stop this kind of behavior, this clear attitude of the irrelevancy of the Senate and of oversight, break someone. Enforce yer subpoenas, break them publicly, and take them down with their entire staff.
This kabuki of Senatorial handwringing and stern talk got old last summer.
parrot wrote on January 30, 2008 1:51 PM:"Not been presented with a concrete situation." No. You haven't...but other people apparently were and still may be. You, Mr. Attorney General, are protecting criminals who let yahooism and cowboying up subvert the laws of our land and contenanced the breaking of the word of these United States. You are participating in the conspiracy...and claiming that you don't know, didn't know, etc means that you are failing to enforce U.S. law. It and you are shame and a stain on the legal profession in this country. And I hope that you live to regret your perfidy where our Bill of Rights and our treaties are concerned. You are a symptom, pure and simple.
anon, too wrote on January 30, 2008 1:58 PM:"People have disagreed about the generality of the language and said that it can be read two ways." - Mukasey
Wish one of the folks on the panel would ask Mr. Attorney General if he has participated in discussion about what the language does mean, and who else has participated in those discussions. Who are these "people" he refers to. Bet David Addington is front and center. This kind of unresponsiveness is legal gamesmanship at its worst.
As long as what they want to do has not been declared illegal, they will continue to hide behind this duplicity about the language being general, and that people disagree about what the language means.
Guillty Bystander wrote on January 30, 2008 2:03 PM:Mukasey can't really come out and call waterboarding torture, can't say it's illegal, can't rule out its use abroad.
mo2 wrote on January 30, 2008 2:08 PM:He also can't admit to all that illegal surveillance. He's like the consigliere of a crime family who counsels restraint -- "It was OK to shoot the rat but not to truss him." Don't expect him to help out the prosecution, i.e., the inquisitive Senators.
Enough Senators are present. Should they, in accordance with Rule XXI, move that the Senate go into closed session to discuss singularly the question "is waterboarding illegal?"
mo2 wrote on January 30, 2008 2:14 PM:"People have disagreed about the generality of the language and said that it can be read two ways." - Mukasey
Yes, Mr. Mukasey, tell us about the disagreements. Who disagreed? When? Provide documentation, please. Did these people have an opportunity to present their concerns to Congress so that Congress could respond to questions about the language? Did they use their opportunity? When or why not?
JW wrote on January 30, 2008 2:22 PM:Keep in mind, too, that these senators (and their counterparts in the House) are the clay with which the presidential candidates all vow to shape into a bipartisan coalition, to best serve the country. Hardee har har.
Give the devil his due. Bush has had their number from day one.
Alpal wrote on January 30, 2008 2:53 PM:How come nobody has ever asked the question if it is acceptable as being legal and not torture for a US soldier or contractor that is captired by the enemy in Iraq or wherever who is subjected to waterboarding?
Mad Dog Rackham wrote on January 30, 2008 2:59 PM:So it sounds like Mukasey needs waterboarding outlawed specifically by name.
Does that mean that he also needs bamboo under the fingernails, thumbscrews, and the iron maiden all outlawed by name? Because I'll bet "some people" (aka Addington) would have no problem with any of those.
If one has no conscience, it can't be shocked.
Centerpunch wrote on January 30, 2008 3:05 PM:...Ok. Back to illegal wiretapping. Did the President break the law in authorizing unwarranted wiretaps of US citizens--YES or NO?
Did the Telecoms break the law in performing these wiretaps--YES or NO?
keep it simple, stupid.
anonoman wrote on January 30, 2008 3:09 PM:Thank you Josh and Crew for being so on top of this.
Egypt Steve wrote on January 30, 2008 3:43 PM:Mulkasey to the Hague! The people who "disagree" about the meaning of the statute are people who have tortured, abetted torture, or ordered torture, and face prison if the law is followed. Of course they "disagree" that crimes were committed. In "The Godfather," Tom Hagen disagreed about the illegality of what Michael Corleone had done. That did not make him a "reasonable" person acting in "good faith." It made him a gangster's mouthpiece. Like Mulkasey.
phil james wrote on January 30, 2008 3:48 PM:I agree with the point that torture as a generic term has lost it's meaning in the context of discussions with members of the Bush Criminal Enterprise, Inc. The best definition as can be determined from these discussions so far is that torture is what the BCEI does NOT do while it is busy using whatever abusive practices seem warranted at the time to get whatever information the abusee might have in their possession. SO outlawing torture is meaningless. One is then left to define and write into law specific methods of abuse as unlawful, which would produce a long, long list or practices in a new bill that would be signed into law by Bush with all listed items exempted from the law at his discretion.
Dave Adams wrote on January 30, 2008 3:48 PM:Umm... correct me if I'm wrong Constitutional scholars:
It seems to me that the Senate has ratified a number of Treaties in the past that expressly forbid torture. Does a duly ratified Treaty rise to the level of law, or does it supersede law?
If it supersedes law, isn't the idea of Congress passing a law to forbid torture somewhat superfluous?
phil james wrote on January 30, 2008 4:03 PM:Mukasey is obviously referring to Thug Party Senators who spoke against the McCain bill. Of course, those sub-human replicants would have argued that crap don't stink if their exalted leader required them to do so at any time and for any reason.
phil james wrote on January 30, 2008 4:06 PM:It would be superfluous only if everyone understood and agreed to a common defintion of what constitutes torture and what specific methods fall within that definition. Remember, the BushCo defintion of torture is "what Bushco does not do".
Utopoia wrote on January 30, 2008 4:15 PM:Well, there you have it. The Administration has just told us that anything the Senate writes can be taken two ways. People can (and apparently always will when one is Mukasey) disagree about any written words. It is all just "general" and you can't hold us to what you think it means. We think it means something else. What is that 'something else'? We won't tell you because we haven't been presented with a specific case. It's all just hypothetical. Sorry.
(And while we're at it, why doesn't someone tell Mukasey that he isn't a judge anymore? He isn't being asked to rule on specific facts; he's whole job is to imagine hypothetical situations and decide which are legal and which are not. He's as frustrating to listen to as Fredo was.)
U
phil james wrote on January 30, 2008 4:20 PM:"Fredo Part Deux" soon coming to theaters.
josh-quasimoto wrote on January 30, 2008 4:42 PM:This is no different than when the POTUS and CO decided that global warming may not be caused by man even though most experts in the field agreed that the anthropogenic effect were very real and would need to be addressed soon. This is no different than when Clinton deicided what 'is' is, except that had to with personal satisfaction rather than the lives of millions of people. POTUS and CO job is to keep everything at a stalement while pushing through initiatives that they support and keeping America in the status qou. They do not want answers merely discourse so nothing will change and progressive policies can not change the landscape of the playing field while this continues. We as American's need to keep this Kabuki type bulls%it front in center until Novemeber comes around or else we are asking for more of the same!
Gene wrote on January 30, 2008 5:17 PM:Waterboarding is a war crime. That is not an opinion; it is a historical fact.
Those who order it, engage in it, condone it and defend it are criminals.
Two simple questions need to be asked: 1. HAS waterboarding BEEN a war crime?
2. DOES waterboarding REMAIN a war crime? The answer to the first question is "yes." The answer to the second question will (apparently) be a tap dance by yet another amoral war criminal/AG/VP/Pres/SecDef/government lawyer.
Your answer, Mr. Attorney General, reveals with clarity that you are not qualified, by dearth of morals, to enforce the laws of the land. If you cannot apply those laws with equal force to all the citizens of the land - from the lowest criminal to the highest officer, then you are not qualified to be in law enforcement, much less its head. If our country cannot equally enforce the laws of war and humanity against our leaders as our enemies, then we are not fit to call ourselves just or moral.
What should we call war criminals? What should we call those who judge right from wrong by benefit to them? Who are those who denegrate the Constitution to their own ambition? I suggest "enemy."
It is a sad fact that our government has become the enemy. The time may be coming soon when partiots must take up arms to guard the Rule of Law and the Constitution against its domestic enemies.
Arun wrote on January 30, 2008 5:48 PM:So unless the Senate adopts a law by unanimous consent, there would have been Senators arguing against the law or some portion of it, and it is therefore ambiguous, and therefore unenforceable.
Is this what the Attorney-General is saying?
pseudonymous in nc wrote on January 30, 2008 10:22 PM:Waterboard the weasel and show it on C-SPAN. Ask him whose war-criminal asses are on the line if he says either way. And waterboard the Dem senators who knew this bullshit was coming, but still voted for him.
Anonymous wrote on January 31, 2008 1:10 AM:Baloney, waterboarding is not "unresolved" as to whether it is or isn't torture; other than his waffling, there is no credible assertion by the AG that something is unresolved in re torture-waterboarding. DOJ OLC Memoranda are clear. DOJ OLC memoranda cite case law which concludes water boarding is torture.