In his confirmation hearing, Attorney General Michael B. Mukasey was rescued by Sens. Chuck Schumer and Diane Feinstein from having to admit that waterboarding has long been defined as torture by U.S. and international courts. At the time, he first denied (under oath) knowing what waterboarding is and then, when told, insisted that he needed more time to think about it. Now, after months, he has suggested that it is not a matter of time or knowledge — he may simply refuse to answer the question that would implicated President Bush in a war crime.
Mukasey’s statement came just a week before a Senate hearing and a demand from some senators that he finally answer the question. Mukasey now insists that “I didn’t say I wouldn’t answer it. I didn’t say that I would.”
The continued gaming of this question is a further indictment of the Democrats in allowing this confirmation to go forward. For a prior column on the confirmation, click here
There was never any question about the answer. Mukasey knew that if he stated the obvious that he would implicate Bush and trigger calls for impeachment. Neither the Administration nor Democrats wanted that to happen.
At first, Mukasey tried to get away with the obvious truism that torture is unconstitutional. However, when pressed further to address the specific question of waterboarding, he shocked many by claiming, “I don’t know what is involved in the technique.”
It was not simply implausible but virtually impossible that Mukasey is unfamiliar with one of the oldest and most used forms of torture. Waterboarding has been around since the Spanish Inquisition — and only later embraced by the Bush administration. It was the subject of famous legal proceedings in the history of the United States, including war crime trials. In 1902, Senate hearings (led by the Republicans like Henry Cabot Lodge of Massachusetts) resulted in the court-martial of Maj. Edwin Glenn for waterboarding prisoners in the Philippines. Like President Bush, Glenn argued national security necessity as grounds for the use of such techniques. After World War II, it was the subject of war crimes trials of Japanese officers who used it against our POWs. In only the last six years, it has been described in literally thousands of publications during this administration and has been cited as the favored form of torture by the CIA.
To his credit, Sen. Sheldon Whitehouse (D-R.I.) was not willing to let Mukasey off the hook with a seemingly transparent lie. He proceeded to define the practice for him: “the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning – is that constitutional?” Unable to deny that he now knew what waterboarding was, Mukasey went back to his circular mantra: “If it amounts to torture, it is not constitutional.”
Attempting to address the issue from a different tact, Senators asked Mukasey if the president could order the violation of federal laws(waterboarding is both a violation of international and domestic law). Mukasey then took on a more menacing tone and refused to answer. “We are not dealing here with black and white,” he warned, “it’s very important that push not come to shove, because the result could be not just divisive but disaster.”
Rather than block the confirmation, the Democrats allowed Mukasey to be saved by Schumer and Feinstein. Since then, Mukasey has refused to share information on the torture program with Congress, (here), refused to share information on the programs with the courts, (here), and had his chief aide also refuse to answer this question in his confirmation hearing, (here). Mukasey has also supported the renomination of Steve Bradbury to a high position in the Justice Department despite his infamous role in the torture program. Click here. In the meantime, the Democrats are openly spinning the CIA tape scandal as merely a destruction of evidence case — and not a case about torture (here).
The question is how long the Democrats can continue this sham. They will continue to make rhetorical noises about waterboarding at next week’s hearing, but every time that they had the ability to do something about it, they have scuttled the effort. Most recently, they guaranteed that the Senate and House Intelligence Committees (accused of knowing about the torture question) would investigate the matter. This means that the Intelligence Committees can investigate themselves while the Justice Department investigates itself.
For Mukasey, he knows that he can continue to evade any answer with oversight committees because a continued lack of principle and courage in the Senate to confront crimes committed by the Administration.
For the latest story on Mukasey, click here