During his confirmation hearings last year, Attorney General Michael Mukasey caused a fair amount of controversy when he refused to state an opinion as to whether waterboarding was or was not torture. This week, Mukasey clarified his position… sort of.
In a letter to the Senate Judiciary Committee, Mukasey writes:
I have been briefed on the CIA interrogation program. A limited set of methods is currently authorized for use in that program. I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not be, used in the current program. There is a defined process by which any new method is proposed for authorization. That process would begin with the CIA 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 the use of the technique.
Mukasey’s letter did not, however, contain any unequivocal statement that waterboarding was torture, or would be prohibited from being adopted again as an interrogation technique under current law:
As I explained to the Committee during my confirmation process, as a general matter, I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances…. If this were an easy question, I would not be reluctant to offer my views on this subject. 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.
Reaction to the letter has been decidedly mixed. According to Andrew McCarthy, the letter “should comfort critics and satisfy the rest of us.” Jack Balkin, by contrast, summarized the letter as saying “You’re crazy if you think I’m going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal,” and Marty Lederman describes the letter as Orwellian.
Personally, I’m inclined more towards Prof. Balkin’s view than Mr. McCarthy’s. While I’m glad that waterboarding isn’t currently being used as an interrogation technique (and isn’t likely to be resumed any time soon), the letter doesn’t address the other controversial techniques, such as sleep deprivation, and I found Mukasey’s continued refusal to state whether waterboarding was or wasn’t torture both frustrating and a little disturbing. On the other hand, lawyers are trained not to concede anything if they can help it, and any Attorney General (and particularly any Attorney General in this administration) is going to be under severe limits as to what he can publicly admit to on the matter.
Perhaps someone with a more finely honed legal mind (*cough* Rick *cough*) can elaborate further on the letter’s significance.
Ad-Free & Subscriber Log-In