The Mukasey Ultimatum

Their question is more than reasonable, and they are wholly within their rights to expect answers to it. Waterboarding, which is reportedly meant to induce a fear of imminent death, seems "specifically intended to inflict severe ... mental pain or suffering"--which is to say that it seems at least perilously close to torture under the language of federal law. Moreover, it was among the techniques about which Congress was concerned when it passed the McCain Amendment in 2005 banning "cruel, degrading, and inhuman" interrogations--which the administration interprets, under Supreme Court case law, to include any tactic that "shocks the conscience." Congress is entitled to understand how on earth the current administration managed to read these laws to make waterboarding acceptable--and to determine, as much as possible, whether the new attorney general agrees or not with that understanding.

But Mukasey’s reticence on this issue should not necessarily doom his prospects as attorney general. Liberal legal blogger extraordinaire Marty Lederman, writing in praise of the Democratic follow-up letter, asks: "If Mukasey now does not publicly agree that waterboarding is unlawful, could (principled) Dems who signed a letter such as this really vote for him?" But there are several good reasons for Democrats to let Mukasey get away with dodging the question--as they likely will.

To begin with, Mukasey was undoubtedly correct in refusing to give a simple answer. The reason, as he suggested at his hearing, is that the Justice Department has taken a position on these questions, and CIA personnel have relied on that position in good faith to do some pretty ugly things. The Justice Department’s Office of Legal Counsel has reportedly issued opinions validating coercive techniques, waterboarding among them; to say now that these opinions are wrong is to announce that the CIA officers who followed their guidance violated criminal statutes. That’s a grave step for an attorney general under any circumstances. But for Mukasey to repudiate classified opinions that he has not even seen would be far worse. To censure them now would be to declare criminal conduct by government employees solely based on what he has read in the paper. It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

The nominee explained as much at his hearing. "I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques," he told the committee. There are only two choices here: answering evasively or refusing to answer. Mukasey did a bit of both.

In fact, no conceivable nominee for attorney general is going to answer this question blind any more readily than Mukasey did. Some will obfuscate. Some, like Mukasey, will insist on remaining publicly agnostic until they’re "read into" the relevant programs. But nobody up for the job of attorney general in this administration can possibly say what Democrats want to hear: "I agree with you. Waterboarding is torture--and I’ll put in the shredder any legal opinion my department has issued that says otherwise, no matter what the consequences." The most anyone can do prior to confirmation is to promise to review these opinions carefully and make sure that the government is following the law as he believes it should be understood--which is exactly what Mukasey has done.

But even given the difficult position Mukasey is in regards to this question, there’s no particular reason to assume that he has any brief for waterboarding, notwithstanding his willingness to serve in an administration that sometimes seems almost proud of it. Late in the hearing, in fact, he made clear that, by refusing to answer questions about the tactic, he was not indicating approval of its legality but protecting himself from further questions about the propriety of less offensive techniques. "I’m a judge from New York, and I’ve watched a lot of cross-examinations," he told Judiciary Chairman Patrick Leahy. And as a result, he knows the way such questioning works: "You start with easy steps and then you go down the road. I don’t want to go down the road on interrogation techniques. ... Did the things that were presented to me seem over the line to me as I sit here? Yeah, of course they did. ... [But] it’s not so much the question as it is the next question and the one after that." While it would be rash to predict that Mukasey will get into office and withdraw key opinions, in other words, one shouldn’t read too much into his refusal to denounce specific tactics, either.

I know what you’re thinking: If they confirm Mukasey without answers, the Democrats will once again be caving and letting the administration escape accountability. But the Democrats actually don’t have to cave here. They just have to wait a few weeks. While Mukasey cannot answer these questions before confirmation, that inability will not persist long once he takes the reins of the Justice Department. Senators can make clear that they will let him take office but will also expect him back before the Judiciary Committee within two months of his accession to address questions of coercive interrogation, that they will expect answers far more straightforward and candid than they got from his predecessor, and that they will demand these answers--to the maximum extent possible--in public session.

The Democrats have a big club to wield over Mukasey’s head to make sure they don’t get snookered: Without a strong working relationship with them, he won’t be able to get anything done. The lack of such a relationship gravely impaired both of his predecessors, albeit for different reasons. And, with only a year to serve in office, Mukasey’s clock will tick loudly from the start. He will prove nothing but a caretaker unless he can act as a bridge between the ruling party on Capitol Hill and an administration that has burned its other bridges to Congress yet desperately needs constructive legislation in a variety of areas related to the war on terrorism. An important start to a useful relationship would be for each side to avoid painting its opponents as unreasonable or partisan. Mukasey could start by promising the Democrats serious answers just as soon as he’s in a position to provide them. Democrats could reciprocate by saying publicly that they take him at his word. If he’s half as savvy as his judicial work suggests, he’ll know exactly what that means.

BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

By Benjamin Wittes