Senators McCain, Graham, and Warner have now made it clear that they will not oppose Michael Mukasey’s confirmation. They state:
We welcome your acknowledgement in yesterday’s letter that the interrogation technique known as waterboarding is ‘over the line’ and ‘repugnant,’ and we appreciate your recognition that Congress possesses the authority to ban interrogation techniques. . . .We share your revulsion at the use of waterboarding and welcome your commitment to review existing legal memoranda covering interrogations and their consistency with current law. It is vital that you do so, as anyone who engages in this practice, on behalf of any U.S. government agency, puts.himself at risk of criminal prosecution. . .and opens himself to civil liability as well. We must wage and win the war on terror, but doing so is fully compatible with fidelity to our laws and deepest values. Once you are confirmed and fully briefed on the relevant programs and legal analyses, we urge you to publicly make clear that waterboarding can never be employed.
But, in the letter to which the Senators refer, Mukasey said that while the technique descirbed by Senators as waterboarding “seem[s] over the line or, on a personal basis repugnant to me, and would probably seem the same to many Americans. . .hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.
Mukasey’s focus on “real life” and “actual facts and circumstances” is not only refreshing, it leaves him plenty of room to conclude that waterboarding is lawful in exigent circumstances, at least until Congress expressly bans it.
In short, McCain and Graham have backed down on Mukasey, while trying to save face through self-righteous rhetoric. This avoids the prospect of incurring anger from conservatives over their vote with respect to Mukasey’s confirmation. But those of us who want to preserve the interrogation device that apparently caused Khalid Sheikh Muhammad to break down in minutes, after other techniques had failed, remain free to punish McCain and/or Graham at the polls for their underlying efforts to ban waterboarding categorically.
Via Jennifer Rubin at the American Spectator blog.