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Mukasey Defends Bush's "Hypothetical" Torture

April 17, 2009

As the latest from the Wall Street Journal and Politico reveal, the apologists for George W. Bush's regime of detainee torture are circling the wagons. While one anonymous Bush official claimed the Obama's release of the torture memos "laid it all out for our enemies," former Attorney General Michael Mukasey in an op-ed written with his CIA counterpart Michael Hayden proclaimed, "The President has tied his own hand on terror." Of course, in his 1700 word screed, Mukasey never acknowledges the possibility that the brutal tactics he defends might be illegal and require prosecution. And that comes as no surprise; back in 2007, Michael Mukasey derided such questions as "hypothetical."
To be sure, Hayden and Mukasey trot out all of the usual Republican talking points. Obama, they charged, not only disclosed "successful" CIA interrogators' "secret sauce" to terrorists, but ensured the agency would return to its timid ways:

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Despite revelations as recently as three weeks ago that "not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions," Mukasey continued to insist that Abu Zubaida was "coerced into disclosing information that led to the capture of Ramzi bin al Shibh" and by extension, 9/11 mastermind, Khalid Sheikh Mohammed.
But while Mukasey today brushed off any notion that the Bush administration's so-called enhanced interrogation techniques "disgraced us before the world," during his confirmation hearings he hedged his bets.
Following in the footsteps of Alberto Gonzales, who during his own February 2005 confirmation hearings deemed Senators' questions on presidential authorization for torture as a "hypothetical situation," Mukasey tried to skirt the issue of the legality of the practices in question. As ThinkProgress recounted, Judge Mukasey in a written response to Democratic Senators in October 2007 took the same line as his predecessor:

In the four-page letter, Mukasey called the interrogation technique "over the line" and "repugnant" on "a personal basis," but added that he would need the "actual facts and circumstances"" to strike a "legal opinion":
"Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."

But during the hearings themselves, Mukasey made clear he was already familiar with at last some of the facts, including at least one of the memos released yesterday:

"The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary."

And like Gonzales, Mukasey refused to disavow specific "enhanced interrogation techniques" such as waterboarding. Entering the realm of semantics and circular logic, Mukasey followed Gonzales' 2005 approach in characterizing discussions of presidential power to authorize given interrogation procedures as hypothetical. As the Washington Post detailed, Mukasey in essence claimed the legality of "torture" all depends what the meaning of "torture" is:

"I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said Sen. Dick Durbin, D-Ill.
"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey answered.
During terse questioning by Sen. Sheldon Whitehouse, D-R.I., Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.
"If it's torture?" Whitehouse responded incredulously. "That's a massive hedge. I mean, it either is or it isn't."
"If it amounts to torture, it is not constitutional," Mukasey answered.
"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."

As Republican Senator Lindsey Graham (R-SC), himself a judge advocate general (JAG) in the military, noted at the time, there was no ambiguity about the legality of the techniques in question.

"If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don't think you have to have a lot of knowledge about the law to understand this technique violates the Geneva Convention and other statutes."

As we fast forward to the imbroglio over the torture memos' release, Salon's Glenn Greenwald made an additional point about the laws and treaty obligations of the United States. The Geneva Convention and the Convention Against Torture signed by Ronald Reagan not only require that the U.S. prosecute those who perpetrated acts of torture, but clearly state that "an order from a superior officer or a public authority may not be invoked as a justification of torture."
Alas, for Michael Mukasey, that's just another pesky hypothetical.

3 comments on “Mukasey Defends Bush's "Hypothetical" Torture”

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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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