When Attorney General Mukasey sat for his confirmation hearings, Democrats focused keenly on his position on what they described as “torture,” especially the controversial technique known as waterboarding. Mukasey declined to respond on the ground that he had not been cleared into classified programs yet, and therefore was not in a position to offer an opinion. In advance of his testimony to the Judiciary Committee today, Attorney General Mukasey wrote this letter to Judiciary Committee Chairman Leahy. In it, he said several noteworthy things. First, since becoming attorney general he has conducted a review of the CIA’s current interrogation techniques. He informed the committee that “the interrogation techniques currently authorized in the CIA program comply with the law.” No surprise to those of us who have been paying attention, but I am sure it will be met with outrage from some quarters.
Second, in response to a question as to whether waterboarding was legally permissible, Mukasey offered two responses. He disclosed that waterboarding is not among the interrogation techniques currently authorized for use in the CIA’s interrogation program. And he appropriately declined to give a hypothetical legal opinion on whether, if it were used, it would be lawful. “I do not believe it is advisable for me to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.” Any answer he might give, said Mukasey “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.” In other words, Mukasey doesn’t want to provide a roadmap for terrorists to know what their American adversaries can and can’t do. Mukasey describes the issue as “not an easy question.” While he admits that there might be some circumstances where current law would appear to prohibit its use, other circumstances (which he does not discuss) “would present a far closer question.”
Mukasey knows what is in for him at today’s hearing and that his response to the hypothetical question of the legality of waterboarding won’t please many committee members. “I recognize that those limits may make my task today more difficult for me personally. But 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.”
Nicely put, Mr. Attorney General. I must note that I had serious reservations while I served in the administration — reservations that I did not keep to myself — about appointing a former federal judge so unknown to many of us who think we know everything. It is pleasing to be proved so terribly wrong.