Michael Mukasey's Magic Words

The Attorney General Isn't The Only Person With The Power To End "Waterboarding"

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Attorney General Michael B. Mukasey reminded Senate Judiciary Committee members Wednesday that if the Congress wants to once and for all to specifically prohibit the use of an interrogation technique known as “waterboarding” it doesn’t have to wait for him to call the practice illegal. It can simply and clearly abolish the technique by statute-something it has repeatedly failed or been unwilling to do over the past few years.

In remarks prepared for an oversight hearing, and then again in person on Capitol Hill, Mukasey threw back at the legislators some of their own arguments from two years ago, when the Congress debated an end to waterboarding as part of its deliberations over the Military Commissions Act and the Detainee Treatment Act. Both measures passed without a ban on the practice which simulates death for the suspect by briefly “drowning” him or her. Committee Democrats wanted Mukasey to firmly declare that the technique is illegal. He offered only a lawyerly response in return.

“The principle that one should refrain from addressing difficult legal questions… has even more force as to this question. That is because any 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 program. Indeed, I understand that a number of Senators articulated this very concern in the fall of 2006, in the course of defeating an amendment that would have expressly prohibited waterboarding.”

He’s right. 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.

Wednesday’s hearing-a kabuki dance where everyone involved knew precisely what their counterparts were going to say before they said it-merely reaffirms that this Attorney General, not unlike that past two Bush Administration attorneys general, wants to retain for his client, the White House, all possible interrogation options in the future. We aren’t waterboarding now, Mukasey said, but we don’t necessarily want to foreclose it as an option down the road. And that might happen if I were to opine publicly that the tactic runs afoul of existing law (not to mention international norms).

And Mukasey’s other client? The American people? As Mukasey sees it, if the citizens of this country want to unambiguously ban waterboarding they will express that desire through their elected officials who, in turn, will strengthen and expand current anti-torture laws. At that point, the client-- the people-- will have given Mukasey the requisite legal direction he seems to think he needs. Anything short of that clear direction, however, and Mukasey is going to do what he is doing now; keeping the government’s legal options open.

Will we see a formal end to legal waterboarding even if the Democrats gain control of the White House and increase majorities in both houses of Congress? Don’t bet on it. Unless we see a landslide that shoves out dozens of Republican legislators the GOP-aided by hawkish Democrats-- still should have a filibuster-capable minority in the Senate. And it never pays to underestimate the bureaucratic and political savvy of the nation’s intelligence communities who clearly would want legal ambiguity.

So from Mukasey himself we now know this about waterboarding: it is not currently practiced, as least as far as the Department of Justice knows, but if it is in the future it may or may not be legal depending upon the circumstances. Got it? That’s a shaky house of law that somehow, someway has been able to withstand months and months (years and years) of hot air blown its way by Sens. Leahy and Kennedy. They keep huffing and puffing but the waterboards stay up and, presumably, ready for use.

[doctor--o]

I never stop being amazed at people supporting torture by claims to reason and rational thought. So much for higher brain function.

[noloyalisti]

Once Mukasey admits what everyone else already knows, then we can go after the war criminals in the butch-cheney administration, the FBI and CIA.

I want indictments. Impeach, then imprison!!!!

[rowdytexan2]

What these two senators expect Mr. Mukasey to do is enforce the law already in place and deter Mr. Prsident''s attempt to interpret the law any way he wants to. And to hold the bastward responsible for breaking that law!

I could say that robbing a bank is not really a crime because it supports my personal economy.

What a bunch of whacko rhetoric by this attorney general Neocon crook!

[myidoncbs]

Tiddsandbeer says, "TORTURE, SMORTURE, TORTURE, SMORTURE....WHO GIVES A FK ABOUT THE "WORD"...IT IS JUST A WORD YOU KNOW"

It''s "just a word" to you until someone decides to apply it to YOU. Then we''ll see how you feel about it.

Furthermore, your entire thesis (as if you are intelligent enough to posit a thesis!) is wrong. It doesn''t matter what information we may or may not be able to acquire through torture (actully, NO USEFUL INFORMATION is the correct answer according to all the experts), what matters is that by torturing people, WE become the very thing we fear. We become our own worst enemy: depraved, immoral, reckless, violent, and thoroughly EVIL.

Tiddsandbeer is a case in point.

[myidoncbs]

"Mukasey [said] that if the Congress wants to once and for all to specifically prohibit the use of an interrogation technique known as %u201Cwaterboarding%u201D it doesn%u2019t have to wait for him to call the practice illegal. It can simply and clearly abolish the technique by statute-something it has repeatedly failed or been unwilling to do over the past few years."

This is a LIE. Waterboarding is ALREADY defined as illegal torture under US law. There is no need for a new law to say that the first law REALLY MEANS what it says.

[quatrops]

With all the macho posturing her sobriquet implies, tiddsanbeer seems to have an intense dislike for "yellow-bellies". She might check out the military service records of the President and Vice-president while pointing fingers.

"Let me question them" boasts this neanderthal pea-brain. Not a chance, sweetie! Unless . . . hmmm . . . you MIGHT apply for a job on Cheney''s staff! The rest of the girls there would LOVE your rhetoric. What to do? Well, you could bring them coffee and stuff . . . something that wouldn''t over-tax your mental abilities.

[mcvet]

If you dunk 10,000 extremist muzzies raghead under water, and get only ONE little piece of information that saves just ONE American life, it is WELLLL WORTH IT.



TORTURE, SMORTURE, TORTURE, SMORTURE....WHO GIVES A FK ABOUT THE "WORD"...IT IS JUST A WORD YOU KNOW... GIVE IT UP YOU DUMAAS LIBERALS....THE AMERICAN LIFE THAT IS SAVED MIGHT BE YOUR OWN!!!

FK''''EM I SAY!...LET ME QUESTION THEM......

LOL


Posted by tiddsanbeer at 01:05 AM : Jan 31, 2008
+ report abuse

My brothers on here are right! You are a sniveling Nazi Coward who doesn''t deserve this nation and certainly are not of the cut of those great men who came before. How many American''s have died PROTECTING this nations beliefs? How much American Blood has been spilled because WE, AMERICA, DOES NOT stoop to the level of our enemy. When Japan tortured every prisoner they had in their capture during WW II, we took their people into custody but NEVER NOT ONCE TORTURED ONE OF THEM. Did they have knowledge of the Homeland we could use? OF course they did. Did they know the location of people and places critical to helping American win the war, of course they did. Did we stoop to the level of the leaders in Japan? NO! We did NOT. You are a shame and an embarrassment to all that is good about this nation. But above all else YOU are a SNIVELING COWARD!! Sieg Heil Bush!!

[skyk-2009]

Bush/Cheney Crime Cartel......Justice DEMANDS these Scumbags stand Trial for War Crimes.


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Posted by veteran71 at 10:31 PM : Jan 30, 2008
+ report abuse

Agreed bro!! Until we stand up as a people we can not expect OTHERS to stand up with us. Until we show others that we BELIEVE in those words we put out for them to go by, we can not expect to lead. This nation ONCE stood for something. We ONCE said things like WE DO NOT TORTURE and the entire world, friend and foe, BELIEVED it. We were ONCE a proud and honorable nation and LOOKED like it to the entire world. Now we look like a bunch of sniveling cowards who SAY the right things but haven''t the courage or conviction to back up those words. That''s just the reality of where these people are and were they come from.

[skyk-2009]

Your just another Bush basher loser who thrives on and profits from upsetting the yellow-bellied antiwar liberals who frequent your pathetic, divisive work.

Your not only a traitor to this country, but your own as well.


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Posted by tiddsanbeer at 01:14 AM : Jan 31, 2008
+ report abuse

Where do you people come from? We have a President that has LIED to us OVER and OVER and OVER again. We have a President who took us into a War with a nation that neigher was any threat to us WHAT SO EVER or had any connection to those who DID attack us and YOU attack those who tried to prevent it! My God were do people like you come from?

[juwboy]

tiddsandbeer:

When Hitler came to power, one of his first acts was the elimination of his political opponents -- Socialists, Communists, Marxists, labor leaders and other left-wingers.

Next, he turned his attention to the groups he considered the greatish blemish on the purity of his glorious German master-race.

Not the Jews.

Or the gipsies.

Or homosexuals.

No, Hitler''s next priorities for extermination were the mentally-retarded and feeble-minded.

Idiots, imbeciles, half-wits, simpletons, morons and cretins.

People just like you, tiddsandbeer!

[observantx]

Laura!


Laura! C%u2019mere! Quick! I wanta show ya m%u2019new dawg!

Jes%u2019 lookit%u2019em. Ain%u2019t he a beut! He%u2019s one of them rare new breeds. A Mukasey! Them 2 senators, whats%u2019ere names. Uh, um, uh, Fine something? Uh. Feinstein! Yeah, Laura, yer right! Feinstein and the other? Uh. Shoeman? No. Schumer. That%u2019s it. They gott%u2019em for me.

Ain%u2019t he jes%u2019 the cutest?!
I mean lookit him. All waggletailed and so happy to see me. I mean, I bet I can teach him tricks, y%u2019know. Like Sit, an%u2019 Speak, and he definitely knows how to roll over, already.

Wait%u2019ll Barney sees%u2019im. I bet they%u2019ll jes%u2019 spend all day running around and playing dog stuff. Laura watch this! I%u2019ve got a treat in m%u2019pocket here.

Uh. What do I call him? Something short an%u2019 simple works on any dawg. Hey! How about Mike? Yeah that%u2019s the ticket!

Here Mike! Here boy! Got%u2019cha a treat!

(Woof!) (Woof!)

(pant) (pant) (pant) (pant)

(drool) (slobber)

(WOOF!)

Good BOY!

[hsinco-2009]

Mukasey is English for Gonzales!!

[p-syrus]

If every practice the federal government is forbidden to engage in is required to be explicitly stated in law then criminal administrations will simply hire clever lawyers to find loopholes in existing law.

Oh right, they did that already!

Clearly Mukasey is just "more of the same" in terms of his legal thinking and no "breath of fresh air" in terms of his legal ethics.

[jimgilmorego]

I think it is interesting the contrast in two articles in todays news in CBS. One relates how FBI interrogator George Piro won the confidence of Sadam Hussein, without any form of torture, and got him to reveal all his secrets by building a relationship with him over time, and contrast that with the CIA program of using waterboarding, and other extreme techniques. I guess the obvious question is "why use torture" when this other civilized approach works?