As I noted yesterday, some Senate Democrats are talking about possibly blocking Michael Mukasey’s nomination for Attorney General unless he proclaims that waterboarding is torture, and thus illegal. Mukasey would not answer the question during his confirmation hearings because he said he did not know enough about this interrogation technique. I argued that Mukasey should tell the Senate that waterboarding is legal in exigent circumstances or, alternatively, come up with a better reason for not answering the question.
Ed Morissey argues that Mukasey shouldn’t answer because the question is improper. According to Ed, it is the duty of Congress to decide whether an act is illegal, and the Attorney General’s job to enforce that decision. Thus, in Ed’s view, Mukasey need only affirm that he will enforce the laws Congress passes, not advise Congress “how he’ll make up legal standards as he goes along.”
This argument might provide Mukasey with a fig leaf for not answering, but I don’t think it withstands scrutiny. Mukasey has testified that torture is against the law. Certain members of Congress (perhaps most of them) believe that waterboarding amounts to torture. They want to know whether the nominee for attorney general agrees. The question is relevant to how he will carry out his duties under existing law.
Asking for the nominee’s view on this matter is analogous to asking him whether he thinks the voting rights laws permit a particular approach to redrawing congressional districts or whether he thinks the anti-discrimination laws permit certain forms of racial preferences. The questions are legitimate because the nominee’s answers tell the Senate how he will enforce these laws.
To be sure, Congress has the option of passing specific legislation banning waterboarding. However, the Senators who are pressing Mukasey (and perhaps a majority of their colleagues) believe that the law already prohibits this practice. If Mukasey agrees, then there is no need (or at least no pressing need) to propose new legislation.
I’m not terribly offended by efforts to stiff Senators Biden, Schumer, Leahy, Durbin, etc. They have acted in bad faith from day one. On the other hand, the case for not taking waterboarding off the table is sound, and a potential political winner, so it might make sense to call their bluff.
To comment on this post, go here. There is some very interesting commentary from readers, including at least one who has himself been waterboarded, and is puzzled by the suggestion that it constituted “torture.”
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