Obfuscation on water-boarding

Stuart Taylor has a well-done column on the politicians posturing on waterboarding and Judge Mukasey's nomination to be attorney general. He points out that the real fault lies with Congress which has deliberately not been clear on what techniques may and may not be used to interrogate prisoners connected to terrorism.

The attacks on Mukasey are an exquisite example of Congress's penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

....Mukasey has called waterboarding, as described in media accounts, "repugnant to me." But he has properly refused to issue a definitive statement that it is always illegal. Part of the reason is that Mukasey has not been briefed on details of exactly what CIA interrogators have done and whether it went on for, say, 10 hours, 10 minutes, or 10 seconds. And part of the reason, in my view, is that waterboarding is illegal in almost all -- but not necessarily all -- cases.

The senators who insist that Mukasey answer hypothetical questions about waterboarding are thus demanding that, without knowing exactly what CIA interrogators did, the nominee risk appearing to retroactively brand these career officials as war criminals, even though they acted in good-faith reliance on the authoritative Justice Department legal opinions that were then in place. Not to mention that he risk providing pretexts for morally preening European prosecutors to snatch U.S. officials and former officials traveling abroad.

I hope and believe that Mukasey will issue a legal opinion soon after being confirmed (as he should be) effectively banning waterboarding in almost all circumstances as "cruel, inhuman, or degrading" treatment. But if Congress wants to make it a crime to ever use waterboarding, or face-slapping, or other specified interrogation techniques, then Congress should stop ducking accountability and adopt new legislation, as Sen. Joseph Biden, D-Del., has now proposed, after full and open debate.

And, as Taylor points out, some politicians want to have it both ways. And no surprise, Hillary Clinton was against it before she was for it.

Clinton typifies this congressional penchant for having it both ways. She said last month that torture "cannot be American policy." But almost everybody says that, including Bush. And Clinton left plenty of wiggle room for extreme cases. Indeed, last year she said that the president might properly "depart from standard international practices" by approving rough interrogation of "a detainee with knowledge of an imminent threat to millions of Americans."

Clinton has not ruled out waterboarding as illegal in such a case. Nor has she said she would rule out waterboarding if only thousands, or hundreds, or dozens of American lives were at risk. So she opposes Mukasey for failing to take a categorical legal position that she herself has never taken -- and, I'd wager, never will.