Wednesday, January 30, 2008


The headline to this article in today's NY Times caught me by surprise: "Mukasey Offers View On Waterboarding." Wow! Did the NY Times scoop all the other major outlets, all of whom note the Attorney General's continuing refusal to state his opinion on the legality of the "harsh interrogation technique?" Well, not exactly. Here is what Michael Mukasey actually said in a letter to the Senate Judiciary Committee:

Attorney General Michael B. Mukasey said Tuesday that the harsh C.I.A. interrogation technique known as waterboarding was not clearly illegal, and suggested that it could be used against terrorism suspects once again if requested by the White House.

Mr. Mukasey’s statement came in a letter delivered Tuesday night to the Senate Judiciary Committee, which has scheduled for Wednesday its first oversight hearing for the new attorney general. The conclusions of the letter are likely to be a focus of severe questioning by Senate Democrats who have described waterboarding, which creates the sensation of drowning, as torture.

“If this were an easy question, I would not be reluctant to offer my views,” Mr. Mukasey wrote to Senator Patrick J. Leahy, the Vermont Democrat who heads the committee.

“But with respect, I believe it is not an easy question,” he said. “There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”
[Emphasis added]

My reading of this definitive answer is "Maybe; but, then again, maybe not."

Is the nation's top lawyer is resorting to an age-old lawyer's trick, that of waffling? Well, maybe; but, then again, maybe not. It's not exactly in the same class as an answer to the standard client's question of "We're going to win this case, right?" No lawyer I know would ever give a definitive answer to that question unless both the judge and the jury had been bribed far in advance of the verdict, and even then it might be dicey.

No, Mr. Mukasey's stance is a little different, although he is waffling. What he is attempting to do is keep his boss and his boss's friends out of any future jail time. The problem is that Mr. Mukasey has forgotten that his real client is not the President of the United States, but rather the people of the United States. His answer, which continues to be a non-answer is shameful, just as his evasion of the question was shameful during his confirmation hearings. It apparently didn't matter then. The question is whether it will matter now.

Of course, Congress could answer the question for him in a clear and forthright manner. They could pass a law that clearly states that the technique of waterboarding is torture and unlawful.

I don't see that happening in this Congress, much to our shame.

355 days.

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