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Is waterboarding legal? Mukasey slips-slides away

Attorney General Michael Mukasey
REUTERS/Jim Young
When it comes to the legality of waterboarding, Attorney General Michael Mukasey is tough to pin down.

No matter how persistent the senators or how compelling their logic, all attempts to pin down Attorney General Michael Mukasey on his view of waterboarding's legality failed in Wednesday's Senate Judiciary Committee oversight hearing. During nearly four hours of sparring — several times with senators who are attorneys steeped in the relevant law — Mukasey dodged and demurred. Yet he said enough to indicate his reasons for the avoidance and to provide a glimpse of how he thinks about the issue.

Not all of the hearing was contentious. His efforts to depoliticize the Justice Department were lauded, as was his commitment to uphold voter rights. Dahlia Lithwick, writing at Slate.com, noted that nearly every senator began by thanking the attorney general — for appointing an outside prosecutor to investigate the destruction of CIA interrogation tapes, "for re-establishing appropriate boundaries between the White House and the Justice Department, ... for putting an end to disparate treatment of gay employees at DoJ, and for, er, reassigning the dread U.S. attorney for Minnesota ...."


She added, "All of these thanks join together to form a sort of mimed Hallelujah Chorus in which all can agree that any day Alberto Gonzales isn't the attorney general is a good day in America."

Who's Mukasey's client?
Yet the grilling soon followed, and many observers found Mukasey's testimony unsettling. Andrew Cohen, in a CBS News analysis, wrote that the hearing "reaffirms that this Attorney General ... wants to retain for his client, the White House, all possible interrogation options in the future. We aren't waterboarding now, Mukasey said, but we don't necessarily want to foreclose it as an option down the road. And that might happen if I were to opine publicly that the tactic runs afoul of existing law (not to mention international norms).

"And Mukasey's other client? The American people? As Mukasey sees it, if the citizens of this country want to unambiguously ban waterboarding they will express that desire through their elected officials who, in turn, will strengthen and expand current anti-torture laws. At that point, the client — the people — will have given Mukasey the requisite legal direction he seems to think he needs. Anything short of that clear direction, however, and Mukasey is going to do what he is doing now; keeping the government's legal options open."

Marty Lederman, a constitutional law professor at Georgetown University and a former Justice Department attorney, deduced from Mukasey's reasoning that the attorney general thinks waterboarding is legal.  In a posting on the Balkinization blog, Lederman wrote that Mukasey's response to questions by Sen. Joe Biden, D-Del., reveal that he and the Justice Department "have concluded that waterboarding is categorically not torture, and is not 'cruel treatment' under Common Article 3 ... . Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause."

Lederman added that a careful parsing of Mukasey's Tuesday letter to the committee "confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where 'current law' would (and would not) prohibit waterboarding. Mukasey apparently has concluded that ... waterboarding is not torture because it does not entail physical suffering of 'extended duration or persistence'"  — a theory Lederman, along with most everyone outside the Bush administration, finds untenable.

Maddening day
To give you a flavor of the mind-numbing testimony that created "a long, maddening day," as Lithwick put it, here is a piece of Mukasey's testimony, quoted by the Associated Press:

"... Mukasey said he would not discuss the legality of the classified program for fear of tipping off U.S. enemies about interrogation methods.

"'There are circumstances where waterboarding is clearly unlawful,' Mukasey said. 'What I have said is simply that there may be circumstances in which that presents a difficult question. I haven't said that there are circumstances in which it's clearly lawful. I'm not going to get into any discussion, in the abstract, of circumstances in which it might be.'"

Susan Albright, a former editor of the Star Tribune's editorial pages, writes about national and foreign developments.

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