Opinion: Treading water on waterboarding
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The issue of waterboarding drowned out almost all other concerns about Attorney General Michael Mukasey during his confirmation hearings last year, and it could wipe out today’s confirmation hearings for Mark Filip, slated to become the next deputy attorney general. From Congressional Quarterly:
Senate Democrats plan to delay a floor vote on President Bush’s nominee for the No. 2 post at the Justice Department until the department responds to several Judiciary Committee oversight letters.
Mukasey had managed to stay afloat and pass muster by the smallest margin in 50 years. At the time, he hedged wildly on waterboarding, protesting that he didn’t know enough to make a judgment.
Yesterday, judgment day came. And the verdict? That he can’t issue one.
Slate‘s Dahlia Lithwick has a scathing critique of Mukasey’s logic:
Mukasey won’t speculate about future water-boarding, either, claiming he will not be drawn into ‘imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities.’ He also refuses to tell ‘people in the field ... what they have to refrain from or not refrain from in a situation that is not performing.’ Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey’s eyes at the witness table in the Hart Senate Building, America’s lawyer cannot hazard an opinion as to its legality.
But Mukasey calls out the senators as well -- and he has a point, says CBS News analyst Andrew Cohen:
Democrats on the Senate Judiciary Committee, especially Committee Chairman Sen. Patrick J. Leahy (D-Vt.) and Sen. Edward M. Kennedy (D-Mass.), want Mukasey to do their heavy lifting. They want him to proclaim by legal memorandum what they have so far been unable to accomplish by political power. It would be nice if he were willing to do so. And you can bet that if a majority of Republicans and the President were calling upon Mukasey to say the magic words he’d be game. But they aren’t and he isn’t and it’s time Leahy and Company moved on.
Judging by their toying with today’s confirmation hearings, it doesn’t seem like they’re ready to take Cohen’s advice just yet.