With Michael Mukasey’s Attorney General nomination looking increasingly tenuous, the president presented a defense this morning to counter lawmaker’s questions. A growing number of senators still want Mukasey to explain whether he believes waterboarding is torture, but Bush believes he need not provide an answer.
Bush said it was unfair to ask Mukasey about interrogation techniques on which he has not been briefed. “He doesn’t know whether we use that technique or not,” the president told a group of reporters invited into the Oval Office.
Further, Bush said, “It doesn’t make any sense to tell an enemy what we’re doing.” […]
“Judge Mukasey is not being treated fairly,” the president said. Without saying whether interrogators use waterboarding, a technique that simulates drowning, Bush said that “the American people must know that whatever techniques we use are within the law.”
And we “must know” this, of course, because the president says so. He wouldn’t lie about torture, would he? Please.
But specifically on the Mukasey defense, the president’s pitch doesn’t stand up well to scrutiny. Mukasey “doesn’t know” whether U.S. officials engage in waterboarding or not? He should — the rest of us know about plenty of documented instances. Why doesn’t Mukasey? If we pass along a few news articles about these instances, will he answer the question?
As for “telling the enemy” about U.S.-backed torture techniques, that continues to be the White House’s weakest argument.
First, detainees can’t exactly prepare for a controlled, simulated drowning. Unless al Qaeda has secretly come up with a strategy to help terrorists grow gills, drowning is still drowning.
Second, and more importantly, when U.S. officials use abusive interrogation techniques, they necessarily tell the enemy what we’re doing — by doing it. When we put a detainee on a waterboard, and torture him, he now knows “what we’re doing.” He can then tell others “what we’re doing.” The secret about our techniques are released every time we use the techniques. (Marty Lederman explained this nicely last year.)
As for Mukasey, the “no” votes continue to pile up, particularly among Judiciary Committee members. Dick Durbin and Sheldon Whitehouse announced their opposition yesterday, and Ted Kennedy is expected to do the same today.
And the NYT had a helpful piece detailing why Mukasey can’t (or won’t) answer the simple question.
In adamantly refusing to declare waterboarding illegal, Michael B. Mukasey, the nominee for attorney general, is steering clear of a potential legal quagmire for the Bush administration: criminal prosecution or lawsuits against Central Intelligence Agency officers who used the harsh interrogation practice and those who authorized it, legal experts said Wednesday. […]
The biggest problem for Mr. Mukasey remains his refusal to take a clear legal position on the interrogation technique. Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey’s calculations as he parried questions from the committee this week. Some legal experts suggested that liability could go all the way to President Bush if he explicitly authorized waterboarding.
And wouldn’t that be messy. Stay tuned.