Mukasey Refuses to Answer Question on Waterboarding in Congress

As expected, Attorney General Michael Mukasey has informed Congress that he will refuse to answer the long-standing question on waterboarding in this week’s hearing. The decision is a further indictment of the decision of democratic leadership to allow Mukasey to be confirmed despite his unwillingness to acknowledge that waterboarding has long been defined as torture and constitutes a crime if ordered by the President.

Mukasey’s refusal came in a letter to the Senate. He stated that “[a]ny answer I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a highly classified interrogation program.”

From a legal standpoint, it is a facially ridiculous statement. There is no debate over waterboarding outside of this Administration. U.S. courts and international courts have long defined waterboarding to be torture — and a war crime. Our “adversaries” know that and they further know that we have used waterboarding as confirmed recently by both high-ranking Bush officials and former interrogators. Click here Mukasey — as in his confirmation hearing — was asked to confirm a legal standard akin to being asked if he understood a poll tax to be unconstitutional.

The most striking aspect of Mukasey’s letter is how fundamentally dishonest it is. He is clearly refusing to answer because he does not want to acknowledge that the President committed a criminal act. He knows that the Democratic leadership also wants to avoid such a confrontation — as evidenced by their decision to confirm him and the votes of Sens. Schumer and Feinstein to save him from having to answer the question.

Mukasey added that “I understand the strong interest in this question but I do not think it would be responsible for me, as attorney general, to provide an answer.” Of course, he took an oath to uphold the Constitution, but now believes that it would be irresponsible to address a criminal act ordered by the President of the United States. It reflects a rather curious understanding of both his oath and his duties. It is the same relativistic view that led to clearly false statements made by Mukasey under oath in first denying that he did not know what waterboarding was and then, when told what it was, refusing to answer the question during his confirmation. Click here

In a maddening added comment, he insisted that “it is my job as attorney general to do what I believe the law requires, and what is best for the country, not what makes my life easier.” Yet, that is precisely what he is doing: taking the easier and unethical approach. The difficult course would be to enforce the law and state the legal standard despite its implications for the President.

In his prepared testimony for Wednesday’s hearing, released
For the full story, click here

13 thoughts on “Mukasey Refuses to Answer Question on Waterboarding in Congress”

  1. Oh, he knew all right. He knew very well. Remember he has a picture of Justice Jackson on his wall. And Justice Jackson wrote the following in his unpublished opinion in Ex Parte Quirin, the “Nazi Saboteurs Case”.

    “I see no indication that Congress has intended to confine the President’s discretion in dealing with captured invaders or intended to confer any rights on them [the captured invaders]”

  2. It’s obvious that some of you folks are educated in the field of law. However, it’s very easy even for an old retired truck driver such as myself that one ought to know what constitutes a crime BEFORE it happens. Setting aside his, “we don’t torture so any answer would be moot” argument, do we wait for someone to blow your brains out before we define what is murder? BRILLIANT! The VAST majority of our citizens will never even contemplate killing someone yet we have scores of homicide/manslaughter laws on the books. How he cannot not be held in contempt is beyond me. The highest law enforcement officer in the land and he is unable(unwilling!) to ascertain exactly what water boarding is, if it’s illegal and whether or not it’s torture?! PUH-LEEZE!!!

  3. Exactly, Patty C, never to return, or if so (which is doubtful), in a far worse and probably permanently damaged condition than he was before being jetted away on that “mystery vacation.”

  4. Or how about being jetted away on that Mystery Celebrity Vacation Hideaway Adventure Package with ‘Club Rendition’ for some
    ‘Spa Treatments’…?

  5. You have to “love” it when pro-torture advocates like “RPalermo” are so willing to torture anyone on the slightest suspicion of being a “terrorist.”

    I wonder what he would say if HE or someone in his family was, without warning, falsely or mistkenly named a “terror suspect” or “enemy combatant.” Oh that’s right, something like a false or mistaken would “NEVER” happen to him. Yeah. Right. And I’ll have a few million deposited in my bank tomorrow!

  6. If you strip away America’s ideals and deepest held values, what do you have left?

    On what moral authority, on what standing, do we then try to lead the world out of the darkness?

    We are never stronger than when we are just and when we are righteous. If you take those away from us, what then will be our shield and buckler?

    And how will we teach our children that our country is the light of the world and the hope of humanity?

    Let us defend ourselves; we need hire no tribe of torturers to stand between us and the enemies of our land.

  7. I agree with Mukasey’s stance on Waterboarding. I wish we could waterboard; no one has died from it, and it is “unpleasant.”

    You wrote:
    “He is clearly refusing to answer because he does not want to acknowledge that the President committed a criminal act.”

    You people are so full of crap. “Clearly”… the president and attorney general are trying to protect all of you idiots who would tell the terrorists exactly what military operations we are ready to perform, who we are monitoring, where we’ll be at what time, etc. If we had you for president, we’d be a goat ready for slaughter. If you don’t think it is executive privilege to get information from terrorists, then I hope the bombs fall near your house and not mine.

  8. Thanks Patty C! I had “mislaid” that.

    What I would like to see happen, and it is regrettable that we have to, is for Congress to re-visit the War Powers Act and strengthen the restrictions on the Executive in regard to such a novel entity as a “war against Terror”. The old Act envisioned nation-state opponents or their surrogates and so needs to be brought up to date.

    The Congress has to look at INS v Chadha carefully if they do an updating as we can be sure that at least a Bush Presidency will cite it when applying the signing statement.

  9. JT, you have time to teach an Introductory/CLE Constitutional Law course to our legislative members?

    … “13 Responses to “Canada Lists the United States as a Torture Nation”

    deeply worried 1, January 22, 2008 at 10:36 pm

    I have been harping of late on how our ancestors viewed issues that were current then and now.

    Torture was indeed brought up. In the 1788 Virginia ratifying convention, a delegate rose to express his fear that the proposed constitution did nothing to protect the people from a government employing torture. The very famous George Mason rose and replied to this fear:

    “Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

    What would Mr Mason say to the case of Padilla, reprehensible an individual as he undoubtedly is, but still a citizen of the United States and very likely subject to cruel and unusual punishment if not torture, even before being convicted of any crime.

  10. Hi Patty C,

    I agree, we really need to have everyone in Congress take a course (or two) on constitutional law. I was INCREDIBLY frustrated with the testimony and the committee. With one exception, no one was willing to follow up productive lines, and no one had taken the trouble to really try to get at the statutory and constitutional history, much less some of the de-classified OLC memos Mukasey should have read up on.

    On some other thread here, I posted a dialogue in the Virginia ratifying convention where a delegate expressly stated his worry that the proposed new constitution would not prevent an autocratic government from torturing its subjects..he was worried about the old world record on that score and didn’t want to see it come to these shores.

    George Mason replied to him that the new constitution expressly forbid such practice under the articles forbidding self-incrimination and cruel and unusual treatment.

    So it was the understanding current at the time of the Framers, that the new government was expressly forbidden from this practice, so far as I can see.

    It is incredible, simply incredible, that both sides of this issue ignore the fact that any statute allowing torture would have to go to the Supreme Court for review and any executive order authorizing torture would be expressly unconstitutional. There is no loophole for the CIA, nor does the President’s powers even at their zenith in his War powers role allow him to ignore the Constitution. Much was made of exigent powers. There are none such. The President operates under the grant of powers detailed in his Article II functions and nowhere do I see a grant of unlimited plenary powers in wartime. This was the central argument that the Presidency has been operating on: that the AUMF granted the president almost unlimited latitude in the prosecution of the “war”. If there were any limits they recognized I don’t know of them. Nor was the war defined except to mean almost any activity anywhere in the world including in the United States. So the Executive assumed an almost unqualified power with unlimited jurisdiction. And the results are as we have seen.

    VERY sorry to rant on at such length, but this is one of those bright lines I hate to see crossed (and worse, obscured).

  11. DW, having copied the time listed on CSPAN this AM, I thought I had missed it, but like you caught some of it at 3pm.

    I was not impressed, except by the degree of obstinacy he employs in not answering the obvious.

    I did chuckle in the referencing of Jack Goldsmith’s book when he said that “no one thought they were breaking the law.”

    Are you kidding me? Every one was behaving as though the Constitution was some obstacle to circumvent instead of the guide which paves the way. Gimme a break.

  12. Listening to the testimony live.

    a lot of bobbing and weaving so far. Inept questioning.

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