Opposing Judge Mukasey

The Wall Street Journal exposes how shallow the reasons for opposing Judge Mukasey that the Democrats have been giving. Right now they've grabbed the excuse of his refusal to declare that waterboarding is a form of torture. But there is more to this story.

Their immediate political figleaf is that the judge won't pre-emptively declare "waterboarding," or simulated drowning, to be illegal. Mr. Mukasey has declared that torture "violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official." But he refuses to say whether waterboarding meets the statutory definition of torture based only on "hypothetical facts and circumstances."
This seems fair enough given that he has not been briefed on any of the classified interrogation details (as top Congressional Democrats have been). It also seems wise given that, if confirmed, he will have to read and consider legal memoranda already approved by Justice Department officials on the same subject. How can he declare himself before he's read them?

Most important, his discretion serves the American people by helping to keep our enemies in some doubt about what they will face if they are captured. The reason that CIA interrogation methods are kept highly classified is so that enemy combatants can't use them as a resistance manual. If terrorists know what's coming, they can prepare for it beforehand and better resist.

With all the publicity about waterboarding as a procedure that lasts a couple of minutes and simulates the feelings of drowning, I wonder how effective the procedure could be anymore. Just as we use waterboarding on our own military to prepare them for possible interrogation techniques, I'd imagine that a well-trained terrorists might undergo the same training. And be told that Americans will only use it for a few minutes and won't actually drown anybody. The effectiveness of the procedure is probably minimal now. So the question isn't about this particular technique which may or may not qualify as torture. If the Senators are so upset about this, they have had the opportunity to express themselves on the question.

If Democrats want to strip the CIA of this tool, then they ought to legislate it openly, not make law under the table through the confirmation process. Congress has twice had the chance to ban or criminalize waterboarding, but it declined to do so in both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. And not for lack of trying: In debating the Military Commissions Act, Ted Kennedy offered a detailed amendment that specifically prohibited waterboarding, as well as other coercive interrogation methods; it lost on the Senate floor, 46-53.

The political calculation here is clear: Democrats want to pander to the antiwar war base of their party that doubts we are even in a war, and in any case wants to treat terrorist detainees no differently than a common street felon. Yet they don't want to be responsible for passing a statute that blocks CIA attempts to gain information that could prevent an imminent terrorist attack. So they dodge and employ ambiguous language that the Justice Department must then interpret. And then they try to run Judge Mukasey out of town because he won't do their political work for them.

In their less cynical moments, some Democrats will admit that a technique like waterboarding may prevent a future attack in extreme cases. "We ought to be reasonable about this," said one Senator at a hearing in 2004. "I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day." He added that all of this should be public in order to have "legitimacy."

That Senator? New York Democrat Chuck Schumer, who recommended Judge Mukasey for Attorney General in the first place. Now Mr. Schumer won't say one way or the other whether the judge has his support. If the Democrats reject Mr. Mukasey, it will tell us they simply aren't serious about the realities of the war on terror.

In trying to get the nomination out of the Judiciary Committee, the question will be whether Senator Schumer asks more of Judge Mukasey than he asks of himself? And, as Rich Lowry points out, Judge Mukasey has demonstrated more respect for the law than Schumer did.

Lucky for him, Sen. Chuck Schumer, who made the above comment during a June 2004 Senate hearing on terrorism, is a member in good standing of the Senate Democratic leadership.

Mukasey is not so fortunately situated. He's only a respected federal judge whose hallmark is a painstaking commitment to the law. He would never, as Schumer did, endorse violations of U.S. law, the Constitution and Common Article 3 of the Geneva Conventions. Mukasey has been absolutely clear that torture is illegal and wrong.

But he won't say that the interrogation technique of waterboarding -- which simulates drowning and induces instant, resistance-breaking panic in detainees -- constitutes torture. On this basis, Sen. Sheldon Whitehouse, a Rhode Island Democrat, fulminated against Mukasey, "Will we join that gloomy historical line leading from the Inquisition, through the prisons of tyrant regimes, through gulags and dark cells, and through Saddam's torture chambers?"

....Even Democrats like Bill Clinton and scourges of torture like Sen. John McCain say it is acceptable to torture someone in a "ticking bomb" scenario. Real life doesn't produce the kind of a-nuke-is-about-to-go-off scenarios featured on the television drama "24." The closest we are likely to get is the capture of high-level al-Qaida operatives like Khalid Sheikh Mohammed with knowledge of ongoing plots. Should we have tortured KSM? No. But we waterboarded him and that reportedly helped roll up al-Qaida terrorists around the world.

Circumstances matter. If we were waterboarding political dissidents, Sen. Whitehouse would be right to compare us to Saddam Hussein. If interrogators were waterboarding KSM every morning for their own amusement, that would shock the conscience. But not many consciences will be shocked at subjecting him to 90 seconds of uncontrollable panic to get information that might save lives.

If all these Democrats are so sure that waterboarding is clearly torture, would they recommend prosecuting the Americans who authorized and performed the procedure on Khalid Sheikh Mohammed? Would a Clinton or an Obama administration bring charges against those Americans? If they are convinced of this fact that they demand that Mukasey attest to without having seen the classified documents, then they should be demanding such prosecutions. And then the American people can judge which party is more serious about fighting terrorists.