Mukasey's skillful evasions on torture

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On television, and in the transcript of Attorney General Michael Mukasey's Jan. 30 testimony before the Senate Judiciary Committee, he certainly showed that he is semantically much more skilful in evading questions than his predecessor, Alberto Gonzales. But Mr. Mukasey also demonstrated that he will not restore the credibility of the Justice Department's commitment to the rule of law — under this administration.

Mr. Mukasey's continued refusal to say whether waterboarding is torture or to conduct a criminal investigation of its use by the CIA is ludicrous in the face of the newly published, heavily documented 849-page "Torture and Democracy" by Professor Darius Rejali. In this history, including the present practices of torture, written by an internationally recognized expert on the subject, the definition, Mr. Attorney General, is plain: "Waterboarding is forced drowning, interrupted, for the prisoner will die if the flow of water is not cut off in time." And yet, on Jan. 6, the Associated Press reported the White House said waterboarding is legal.

Prove it, Mr. Mukasey. Largely overlooked in the press coverage of Mr. Mukasey's evasiveness — which is much more sophisticated than Mr. Gonzales' — were his answers concerning Steven G. Bradbury, the longtime acting head of the Justice Department's Office of Legal Counsel, which is charged with monitoring the legality of the department's actions or inactions.

The president keeps unsuccessfully and insistently renominating Mr. Bradbury to that crucial post because Democrats on the committee are acutely aware that after the Justice Department in 2004 declared that torture is "abhorrent," Mr. Bradbury the next year issued classified memorandums giving Justice Department endorsement of such "harsh" techniques (as they are euphemistically termed) as extended exposure to cold and other practices condemned by the Geneva Conventions and our own Supreme Court.

Included in the Bradbury permissions was waterboarding or, as the squeamish put it, "simulated drowning." Also, Mr. Bradbury authorized these extra-coercive interrogation techniques to be used in combination, making them the cruelest techniques in CIA history.

On Jan. 25, (as reported by Legal Times three days later), Mr. Mukasey said: "Steve Bradbury is one of the finest lawyers I've ever met, and I've met a lot of very good ones. I enjoy working with him, and I want to continue working with him." In his testimony before the Senate Judiciary Committee, Mr. Mukasey did not change his panegyric about Mr. Bradbury — not even after Sen. Dick Durbin told him what former Deputy Attorney General James Comey has said about the 2005 Bradbury memorandums giving the CIA and other interrogators in the field the authority to commit what are actually crimes under our own laws and the International Covenant Against Torture.

What Mr. Comey said about the Bradbury memorandums was that if those official classified opinions became public, the Justice Department would be ashamed. By now, their contents have appeared in the press, but the attorney general of the United States shows no signs of being ashamed.

Under prodding by Mr. Durbin, Mr. Mukasey says that he will review those Bradbury opinions. Will his conclusions be classified, or will he let us know whether he still believes Mr. Bradbury brings credit to the Justice Department?

But watch out. This crafty attorney general has already indicated what he might do if those opinions shock his conscience. He told Mr. Durbin: "I think, though, that those opinions would be considered principally in light of whether they relate to things that are current. They're not, but I will review them." So, we have to trust the Bush administration, including the attorney general, if they say waterboarding, for instance, is no longer current and not relevant anymore and keep renominating Mr. Bradbury.

Do you have that trust? In any case, should the attorney general decide that the by-now-notorious Bradbury memorandums relate only to what has been in the past, he has already strongly indicated that what abuses our interrogators have practiced in the field in the belief that they were lawful and authorized by their superiors should not be punished. That could include waterboarding, At the start of the Jan. 30 hearings, Senate Judiciary Chairman Patrick Leahy spoke of "the damage done over the past seven years to our constitutional democracy and our civil liberties... and among the most damaging aspects of those years has been the complicity of the Justice Department, which has provided cover for the worst of those practices [including] its secret legal memoranda that sought to define torture down to meaninglessness." Hearing and watching Mr. Mukasey that day and now reading the transcript, I believe that this man in charge of the Justice Department, our chief law enforcement officer, is continuing the coverup.

Mr. Leahy added that the president and his administration "decided that ... they can unilaterally decide what parts of what laws they are going to follow." They haven't changed their contempt of the Constitution's separation of powers. Mr. Mukasey fits right into that team.