Former federal prosecutor Mary Jo White defends Attorney General Mukasey for declining to say during his confirmation hearings whether waterboarding is legal under current law. I agree with White’s conclusion, but not with all of her reasoning.
In the end, Mukasey was justified in not answering the question for the combination of reasons he gave in his October 30 letter to the Senate Democrats on the Judiciary Committee: (1) he was not briefed about the details of any interrogation program to the extent they are classified, and thus does not know what the precise techniques at issue are; (2) he did not want his uninformed statements to place our professional interrogators and those responsible for reviewing their conduct in legal jeopardy; and (3) he did not want his statements to provide our enemies with a window into the limits or contours of any interrogation program we have in place.
White goes on step further, however. She suggests that Mukasey was justified in not answering the question of whether waterboarding is lawful because the operative legal language does not explicitly ban waterboarding, but rather bans “torture,” and it is up to Congress say whether particular practices constitute torture.
Mukasey, while properly chiding Congress in his letter for not legislating more clearly, was wise not to make this one of his three reasons for refusing to answer. Congress has the right to ask a nominee how he interprets existing law that he or she will be charged with enforcing. In this case, where torture is outlawed, Congress in effect asked Mukasey whether he considers waterboarding to be torture. It is one thing to answer, I don’t know enough facts about the specifics of the practice to tell you. It’s another to say, I’m not going to say what I think the existing law is because you could have written and tried to pass a clearer law.
The latter answer would have been inappropriate, as Mukasey seems to have recognized. The Attorney General must enforce existing law, and (absent special circumstances such as those Mukasey cited) Congress should know how a prospective AG views, and therefore will enforce, existing law.
Via Real Clear Politics.
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