'Waterboarding' Mukasey
January 31, 2008
If Senate Democrats thought Attorney General Michael Mukasey was someone they could push around to score political points, yesterday they discovered their error. The new AG stood his ground on the legal war on terror, despite five hours of grandstanding over an interrogation technique that the CIA doesn't even practice anymore.
We refer, of course, to "waterboarding," which the political left has made into a proxy for the Bush Administration's alleged "torture" of enemy combatants, which Democrats seem to think is a winning political issue. Thus the grilling of Mr. Mukasey to prod him to declare that he had now concluded that "waterboarding" is in fact "illegal." Democrats would then be able to flog the Bush Administration from here to November, declaring that "even Attorney General Mike Mukasey says . . ."
Mr. Mukasey was true to his promise during confirmation hearings to investigate the legality of government interrogation practices. And so yesterday he certified that all techniques currently in use are legal. However, in a letter to the Senate, he added that, "I do not believe it is advisable to address difficult legal questions . . . in the absence of concrete facts and circumstances."
This displeased some of the Senators, who accused him of dodging the waterboarding issue. But Mr. Mukasey is right to avoid hypothetical legal judgments over something that is no longer practiced. The former judge was careful to point out that legality depends on context, and he couldn't judge the actions of others in 2002 without knowing the circumstances.
The CIA has acknowledged waterboarding only three of the hardest al Qaeda suspects, which is the kind of difficult decision that U.S. officials had to make in the wake of 9/11. They didn't do so out of some vengeful bloodlust but to protect the country from future attack and with the backing of a Justice Department legal opinion at the time.
Judge Mukasey's point about "context" is something that Democrats surely understand, since many of their leaders, including Speaker Nancy Pelosi and Senate Intelligence Chairman Jay Rockefeller, were briefed about waterboarding at the time. There's no evidence they objected then. But they're making a fuss now that their anti-antiterror supporters have made "torture" a campaign theme. If Democrats really want to end waterboarding forever, they have the power to ban it outright. But that would have a political cost of its own, especially if there were a future terrorist attack.
Mr. Mukasey also deserves credit for speaking up on behalf of Steven Bradbury, the acting head of the Justice Department's Office of Legal Counsel, whom Mr. Bush has renominated for the post. Mr. Bradbury has angered Democrats for legal opinions he wrote in 2005 on the use of certain classified interrogation techniques, but he's also been a stand-up guy in the legal war on terror. America is safer because of him, and he deserves to be confirmed.
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