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Mukasey and Gonzales: Discussions of Torture "Hypothetical"

October 30, 2007

A little over a week ago, I documented the disturbing parallels between the confirmation testimonies of Attorney General nominees Michael Mukasey and Alberto Gonzales. To the dismay of many members of the Senate Judiciary Committee, Mukasey like Gonzales decried the 2002 Bybee memo authorizing detainee torture, while withholding judgment on the legality of specific techniques such as waterboarding on the grounds that such as discussions are purely "hypothetical." Now, given the chance to clarify for the Senate, Mukasey dug his hole even deeper by maintaining the hypothetical scenario dodge.
In his written responses to questions from Senate Democrats regarding waterboarding and other issues, Mukasey regurgitated Alberto Gonzales' 2005 assertion to Senator Russ Feingold (D-WI) that "what we're really discussing is a hypothetical situation." In his formulation of the Gonzales evasion, Mukasey wrote the Senators today:

"Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."

That response, of course, is almost comical on its face. As Rear Admiral John D. Hutson, a former Navy lawyer and dean of Franklin Pierce Law Center in Concord, N.H, remarked two weeks ago, "Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history."
The hypothetical torture dodge, of course, worked well for Attorney General nominee Alberto Gonzales, who was confirmed by 60-36 in February 2005. The jury is still out on Mukasey is still out. But if the opposition of Chris Dodd, Joe Biden, Hillary Clinton and Barack Obama is any indication, Michael Mukasey's path to the top of the Justice Department may be tortuous indeed.
For more on the eerie similarities between the statements to the Senate of Michael Mukasey in 2007 and his predecessor Alberto Gonzales in 2005, see "Deja Vu: Mukasey Channels Gonzales' 2005 Testimony," reprinted below the fold.


Deja Vu: Mukasey Channels Gonzales' 2005 Testimony
October 21, 2007
By most accounts, Attorney General nominee Michael Mukasey is not the intellectually stunted, duplicitous partisan hatchet man and unabashed Bush loyalist that was his predecessor, Alberto Gonzales. But in his testimony this week before the Senate Judiciary Committee this week, Mukasey followed almost the same script on Bush administration torture policy as Gonzales during his own confirmation hearings in January 2005. As it turns out, both men disavowed the infamous 2002 Bybee memo and brushed aside questions about ongoing torture of detainees as "hypothetical" even as the policies continued unchanged.
First, a little background. As I wrote two weeks ago, Alberto Gonzales lied to Congress regarding the administration's policy on torture of detainees during his 2005 confirmation hearings. Beginning in August 2002, the infamous Bybee memo drafted by torture apologist John Yoo was the basis for the Bush administration's interrogation techniques for terror detainees worldwide. Defining torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," the White House endorsed brutal techniques up to and including waterboarding. But while the Justice Department in December 2004 publicly proclaimed that torture was "abhorrent," the new Attorney General in February 2005 and again later that same year issued secret memos which "provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."
But that uninterrupted policy of detainee torture is not what Alberto Gonzales described to Senator Russ Feingold (D-WI) during his confirmation hearing in January 2005. The August 2002 memo, Gonzales claimed had been withdrawn, and questions about the extent of presidential war powers eclipsing laws and treaties of the United States were merely "hypothetical."

FEINGOLD: The question here is: What is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority?
The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional; it's about our laws and international treaty obligations concerning torture.
The torture memo answered that question in the affirmative. And my colleagues and I would like your answer on that today...
GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes.
So it's been rejected by the executive branch. I categorically reject it.
And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture.
And so what we're really discussing is a hypothetical situation...

Fast forward 30 months to witness Judge Mukasey channeling Alberto Gonzales during his own confirmation hearings to head the Justice Department. Like Gonzales, Mukasey rejected the 2002 Bybee memo and its authorization for detainee torture.

"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 on Friday, Mukasey in essence 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."

Discussing Mukasey's testimony, a clearly astonished Rear Adm. John D. Hutson, a former Navy lawyer and dean of Franklin Pierce Law Center in Concord, N.H, remarked, "Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history."
All of which suggests that Senator Chuck Schumer's hopeful picture of Michael Mukasey as "the kind of nominee who would put rule of law first and show independence from the White House" is in fact mistaken. As it turns out, the iconic image for a Bush Attorney General is Alberto Gonzales after all.
For more background on the Bush administration's unbroken policy of detainee torture, see "Bush Signing Statement, Gonzales Perjury Concealed Torture Policy."


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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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