The Stench of Torture

By Dan Froomkin
Special to
Tuesday, October 30, 2007; 12:56 PM

The stench of torture that permeates the White House has spread to Attorney General-designate Michael Mukasey, putting what had been seen as a surefire nomination at risk and reigniting a momentous ethical debate.

By refusing to acknowledge at his confirmation hearing that waterboarding is torture, Mukasey appeared to throw his lot in with those who embrace an authoritarian strain of moral relativism, one that excuses abhorrent and illegal policies as long as the president declares they're in the national interest.

When longtime Bush loyalist Alberto Gonzales was nominated to succeed John Ashcroft as attorney general, critics expressed what turned out to be eminently justified concern that he would never buck the White House. By all accounts, Mukasey, a federal judge, is much more independent than Gonzales. As I wrote in my Sept. 18 column, Bush evidently realized that the Democratic Congress wouldn't let him install another complete lickspittle into the nation's top law-enforcement post.

Nevertheless, Bush and Vice President Cheney desperately need someone in that job who won't undermine the most radical of their legal positions: Those regarding executive power and the treatment of terrorism suspects. And they seem to have found such a person in Mukasey.

Scott Shane writes in the New York Times: "Six years after the Bush administration embraced harsh physical tactics for interrogating terrorism suspects, and two years after it reportedly dropped the most extreme of those techniques, the taint of torture clings to American counterterrorism efforts.

"The administration has a standard answer to queries about its interrogation practices: 1) We do not torture, and 2) we will not say what we do, for fear of tipping off future prisoners. In effect, officials want Al Qaeda to believe that the United States does torture, while convincing the rest of the world that it does not.

"But that contradictory catechism is not holding up well under the battering that American interrogation policies have received from human rights organizations, European allies and increasingly skeptical members of Congress....

"President Bush has repeatedly defended what the administration calls 'enhanced' interrogation methods, saying they have produced invaluable information on Al Qaeda. But the administration's strategy has exacted an extraordinary political cost.

"The nomination of Michael B. Mukasey as attorney general, once expected to sail through the Senate, has run into trouble as a result of his equivocation about waterboarding, or simulated drowning. Mr. Mukasey has refused to characterize the technique as torture, which would put him at odds with secret Justice Department legal opinions and could put intelligence officers in legal jeopardy."

Massimo Calabresi writes for Time: "George W. Bush has always wielded moral clarity as a weapon, beating Democrats by declaring his high purpose and principled resolve. But in recent months, as critics have shined new light on domestic spying and harsh interrogation techniques in the morally ambiguous world of counter-terrorism, Bush has had to retreat to gray-area defenses, using tailored definitions and legalisms to dodge questioners. And now, as Democrats raise the pressure on embattled Attorney General nominee Michael Mukasey to state his opinion on whether or not waterboarding constitutes torture, it is the president's opponents who are using moral clarity against him."

Calabresi writes that if Mukasey "refuses to declare waterboarding expressly illegal, he looks likely to be rejected by the Judiciary committee. On the other hand, if he does declare it illegal, he may be rendering a legal judgment on everyone who authorized waterboarding or used it in interrogation. 'They are putting him in an almost untenable position on this,' says White House spokesman Tony Fratto. The White House expects Mukasey's response will be sent to the committee Tuesday or Wednesday, and Fratto says, 'He'll respond in his usual manner, which is thoughtful and thorough, but there are certain things that he will not be able to comment on.'"

Calabresi also offers a peek behind the scenes, where -- surprise! -- Vice President Cheney's office is heavily involved: "Harold Kim, a former Specter staffer who works in the White House Counsel's office, has been negotiating with Judiciary Committee Democrats, trying to find language they can live with. But attempts to compromise with Congress have met resistance from Cheney's office, and when it comes to interrogation techniques, the Vice President and his chief of staff, David Addington, have notoriously pushed for Presidential authority to go unchecked by the legislative branch."

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