Attorney General Michael Mukasey has performed the central task for which he was chosen by the President and leading congressional leaders — he is refusing to allow a criminal investigation into water-boarding. It was a decision that seemed inevitable after Democrats like Chuck Schumer and Diane Feinstein saved his confirmation.
Mukasey’s reasoning is bizarre: because Bush lawyers said it was okay, it was. The moment of truth came under questioning from House Judiciary Chairman John Conyers who asked Mukasey whether he was starting a criminal investigation since CIA director Michael Hayden and other have confirmed the use of waterboarding: “No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.”
So here is how the law works for General Mukasey. Bush appoints extremists who believe that he can order acts defined as war crimes by U.S. and international courts. They then say torture is permissible. When the crimes are revealed, the Attorney General says that since lawyers said it was legal, it was not criminal. That would mean that any crime could be magically transformed into a non-crime by simply hiring clueless counsel.
Of course, the fix was in some time ago with Democrats who repeatedly acted to prevent any serious investigation or confrontation on the issue — due in no small part to the disclosure of their own knowledge of the torture program.
Mukasey has repeatedly refused to acknowledge that waterboarding is a crime to prevent triggering an investigation. Mukasey’s last 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.
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.
For the latest story, click here