Attorney general nominee Michael B. Mukasey today wrote a second, and much less artful, letter to the Senate Judiciary committee in response to its question about whether waterboarding is a permissible interrogation technique.
The man not only failed to answer the question, he wasn't able to bring himself to say the W-word: “waterboarding”.[*]
Here's the bottom line: “certain coercive interrogation techniques” may or may not be legal, but our poor ethically challenged AG-to-be can't say for sure in the context of a hypothetical question. Only a specific case would allow a judgment. And just because Mukasey finds them repugnant isn't enough to say these “coercive interrogation techniques” are illegal.
Part of the subtext is that were the Justice Dept to actually decide that waterboarding were illegal it would have to decide whether to prosecute the waterboarders on the federal payroll (especially at the CIA). And it doesn't want to do that, especially since this administration told them to go ahead. Indeed the people — Gonzales? Rumsfeld? Cheney? — who gave the orders might be the ones who become possible targets for prosecutors.
But ultimately, it's a basic decency issue. It may be that publicly admitting to basic decency is a disqualifying action for law enforcement officials in this administration, but if so, then the Senate shouldn't confirm anyone to the job. A vote for someone who will not disclaim waterboarding under any circumstances is a vote for someone who isn't fit to hold office under the Constitution of the United States.
In a positive development, Senator Clinton announced that she'll vote against Mukasey. However, none of the candidates have yet said they'll filibuster Mukasey's nomination.
Sadly, the candidates remain trapped in reactive politics. As far as I know, not one of the major candidates — not even Sen. Dodd — have ever touched the much more important issue of whether, if elected, they would prosecute any people in the current administration who are found to have ordered torture and who are found to have carried it out.
[*] Update: in fairness, I should note that Mukasey did bring himself to say the W-word in the context of the uncontroversial assertion that the military can't waterboard. What this artful distraction elides, however, is that the issue is what the CIA and other civilian agencies are allowed to do. (Note that the FBI, to its credit, seems to have not only stayed away from the darkest parts of the dark side, but even objected to them.)