Senator Edward Kennedy: “Would waterboarding be torture if it was done to you?”

Attorney General Michael Mukasey: “I would feel that it was.”

Despite that, Mukasey still refuses to answer whether waterboarding is torture and is prohibited. A portrait of George Orwell indeed hangs on his wall at the Department of Justice. Good old doublethink.

See the exchange at TPM Muckraker.

• Reuters: U.S. Attorney General says CIA interrogations legal
• CNN: Attorney General won’t say whether waterboarding is torture
• The Day: Mukasey: No Special Prosecutor Planned [in CIA Torture Tapes Scandal]

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Three main points in Attorney General Mukasey’s letter to Senator Leahy about waterboarding (January 29, 2008):

1) Mukasey thinks torture is okay sometimes (but we have to guess when): “If this were an easy question, I would not be reluctant to offer my views, but with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

2) Mukasey likes to keep his torture methods secret (legitimate interrogation programs all publish their rules): “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 interrogation program.”

3) Mukasey thinks waterboarding could be legally approved for use again (torture at the stroke of the presidential pen): “’That process would begin with the C.I.A. director’s determination that the addition of the technique was required for the program. Then the attorney general would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed. Finally the president would have to approve of the use of the technique.”

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Michael Mukasey: Keeper of the legal apparatus for the commission of war crimes

When asked at his confirmation hearing whether waterboarding used and approved by the Bush administration against detainees was torture, Michael Mukasey refused to answer because he had not been “read-in” on the details of the program. Well, after nearly three months as Attorney General, Mukasey has had plenty of opportunity to get any information he said he needed.

Having been “read-in” on the U.S. interrogation programs, what does Attorney General Mukasey think of waterboarding now? On January 30 at 10AM, he will have a chance to go before the Senate Judiciary Committee that voted to confirm him and answer precisely that question.

Senate Judiciary Committee Democrats have asked Mukasey in a letter to come prepared to answer two questions:

1. Is the use of waterboarding as an interrogation technique illegal under U.S. law, including treaty obligations?

2. Based on your review of other coercive interrogation techniques and the legal analysis authorizing their use, what is your assessment of whether such techniques comply with the law?

Both these questions are good, but they do not touch on the central issue: accountability. As explained in a previous post, only the threat of criminal sanction can stop the U.S. torture program, and if the senators shy away from demanding that, they will be handing another victory to the torturers. If the senators are serious about ending the torture policy, they must also ask Mukasey the following questions:

3. Was the authorization of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

4. Was the use of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

5. Was the authorization of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws? Was the use of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws?:

• (1) Forcing an individual to be naked, perform sexual acts, or pose in a sexual manner.

• (2) Placing a hood or sack over the head of an individual, or using or placing duct tape over the eyes of an individual.

• (3) Applying a beating, electric shock, burns, or other forms of physical pain to an individual.

• (4) Subjecting an individual to the procedure known as `waterboarding’.

• (5) Subjecting an individual to threats or attack from a military working dog.

• (6) Inducing hypothermia or heat injury in an individual.

• (7) Conducting a mock execution of an individual.

• (8) Depriving an individual of necessary food, water, or medical care.

4. Will you appoint a special counsel to conduct a full, public, and impartial criminal investigation on the authorization or use by U.S. personnel or assets of any of the above mentioned techniques against detainees?