Someone needs to read their job description
Thanks to the spineless and craven Sens. Chuck Schumer and Dianne Feinstein (and a supporting cast of dozens of Dubya-sycophantic Republican foamers), we're treated to this spectacle:
"I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law," [recently confirmed Attorney General] Mukasey wrote to Leahy. "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.""... After all, I'm just the preznit's consigliere, not the 'top law enforcement officer of the United States'. What do you want me to do? Say that the preznit's henchmen have been breaking the law or sumptin'?!?!?"
Just in case you're feeling better already because we've allegedly stopped waterboarding, there's also this nugget:
Mukasey said in the letter that waterboarding -- a simulated drowning meant to coerce disclosures by a resisting prisoner -- is not part of a "limited set of methods" being used by CIA interrogators. Mukasey said he has found the current methods, which he did not specify, to be legal.So Mukasey's not completely unable to make legal determinations, as long as the answer is, "It's OK, just fraternity hazing".
Yes, indeedy, we've found other ways now, of course all perfectly legal, to get the answers we need (and which protected us so well before):
Al-Libi has been identified as the primary source of faulty prewar intelligence regarding chemical weapons training between Iraq and al Qaeda that was used by the Bush Administration to justify the invasion of Iraq. Specifically, he told interrogators that Iraq provided training to al-Qaeda in the area of weapons of mass destruction. In Cincinnati in October 2002, Bush informed the public:But you can bet your boots that Mukasey won't tell you what these new "methods" are. That would reveal secrets, damage nash'nul securitah and be ... "irresponsible". Do you want the Terra-ists to win?"Iraq has trained Al Qaeda members in bomb making and poisons and gases."This claim was repeated several times in the run-up to the war, including in Colin Powell's speech to the U.N Security Council on 5 February 2003, which concluded with a long recitation of the information provided by al-Libi. Powell's speech came less than a month after a then-classified CIA report concluding that the information provided by al-Libi was unreliable and about a year after a Defense Intelligence Agency report concluded the same thing.
Al-Libi recanted these claims in January 2004 after U.S. interrogators presented to him "new evidence from other detainees that cast doubt on his claims", according to Newsweek. The DIA concluded in February 2002 that Libi deliberately misled interrogators. Some speculate that his reason for giving disinformation was in order to draw the U.S. into an attack on Iraq, which al Qaeda believes will lead to a global jihad. Others suggest that al-Libi gave false information because of the use of excessively harsh interrogation methods. Al-Libi is believed to have been one of the high value detainees who prompted the Bush administration to initiate interrogation methods of questionable morality and legality. These critics suggest it wasn't hard for al-Libi to figure out what his interrogators were sure he knew, and that they wouldn't stop, until he told them what they wanted to hear.
(h/t to Think Progress)
Now we're getting somewhere. The Muck is reporting that Biden's method of questioning is producing results:
Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?
Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."
So we've got our "TTB" scenario again.... What "shocks the conscience" for Mukasey is not getting a good deal for your torture.
(h/t to TPM Muckracker)
Prof. Marty Lederman has posts up on this subject as well at Balkinization, here, here and here.
From the "Do you want the Terra-ists to win" bin, Prof. Lederman puts forth this 'logic':
It would, Mukasey insists, "tip off adversaries" to define "the limits and contours of generally worded laws" that circumscribe U.S. interrogation policies.Of course, "the limits and contours" of our laws need to secret, or the Terra-ists will have won. If there's not room for some slop when needed, why, we might even have to break the law on occasion, as the occasion may require. See my "TTB" link above for more on that.
But just to clarify things a bit, I'd note that "our laws" apply to everyone, not just those people whose missions and jobs are Tippy-Top, Sooper-Dooper, Hush-hush, Secret, such as soldiers, police, etc. I guess that such people will just have to guess as to the "contours", and do the best they can. There's always a preznitential pardon from Dubya for the luckless left in the dark....
Looks like someone else agrees with my title for this post:
Sen. Sheldon Whitehouse, D-R.I., accused Mukasey of taking an overly narrow view of his responsibilities as attorney general and said he appeared to be acting as a corporate lawyer "unwilling to look back and dredge up past unpleasantness and risk potentially creating liability for the corporation."Mukasey was not chastened, though:
"You are the top law-enforcement officer of the United States," Whitehouse said. "And prosecutors do look back. They do dredge up the past in order to do justice."
Said Mukasey: "I wear one hat. It says attorney general of the United States. There are a number of duties under that, but as far as I'm concerned, there is no divided responsibility or divided loyalty. There is one responsibility.""... and that responsibility is to be "loyal", to do the preznit's bidding, and to cover the preznit's a$$."
Well, at least we've got that clear. Thank you, Chuck and Dianne.