No Comment — November 15, 2007, 8:05 am

Mary Jo White, for the Defense

Among the witnesses appearing for Michael Mukasey at his confirmation hearing was former New York U.S. Attorney Mary Jo White. She served both Presidents Clinton and Bush and is generally viewed as a hardnosed non-partisan figure. Her praise for Mukasey was sensible, and not in fact much different from my own. In a piece published in USA Today, however, White jumps the tracks. She writes:

When asked by members of the Senate Judiciary Committee whether the coercive interrogation technique is illegal, Mukasey expressed his repugnance to waterboarding. He said it would violate the Detainee Treatment Act for the military to use it. But he declined, in the absence of legislation forbidding waterboarding in all cases, to opine more broadly without first being briefed on specifics of the interrogation methods actually used and the Department of Justice’s legal opinions purportedly authorizing them, both of which are classified. This was not satisfactory for some senators whose “yes” vote would have required an unequivocal, sweeping answer that waterboarding is illegal under all circumstances. But it’s not so clear and simple.

Except that it is perfectly clear and simple. Waterboarding is illegal and always has been. There’s never been the slightest room for equivocation, and the prohibition is certainly not limited to the Detainee Treatment Act (the DTA, which its own authors made very clear was not new law but a restatement of existing law). Look at the statements of the Judge Advocates General of the uniformed services–they made very clear in their 2006 Congressional testimony that waterboarding was a crime, that the prohibition is not limited to the DTA, or the Geneva Conventions, but clearly rooted in American law, dating back at the latest to the Lincoln Administration.

Ms. White’s comments are dangerous and remarkably ill-informed. Dangerous, because, as the military correctly recognizes, the noise emanating from the camp of apologists makes it more likely that incidents of unauthorized abuse will occur. The Army has already been forced to issue reminders that notwithstanding the confused statements made by Mukasey and his apologists on the waterboarding issue, waterboarding is absolutely illegal.

And ill-informed. White is reading from the Justice Department’s briefing book, which neglects the essential facts. Let’s start with the fact that American prosecutors have tried and convicted persons using waterboarding since 1902, both Americans and foreign nationals. The International Military Tribunal for the Far East handled a significant number of waterboarding cases, and the punishments sought extended to the death penalty.

The issue was also squarely addressed by U.S. courts. Indeed, the practice of waterboarding was widely documented and used against African Americans in the American south. And the Mississippi Supreme Court—neither then nor now a bastion of liberal jurisprudence—concluded that waterboarding was illegal torture in an opinion handed down in 1926.

However, lawyers who serve the Bush Administration, from John Yoo to Mary Jo White, seem to be subject to rather convenient flashes of legal amnesia. America’s history and doctrines on the issue simply disappear, because they’re inconvenient. Or once clear-sighted lawyers suddenly see everything go out of focus–everything is just uncertain.

So what’s all this really about? The sad fact is that the Bush Justice Department, in which White served, broke the law in the most outrageous fashion—by crafting memoranda which sought to authorize and legitimize these practices. And, taking the cover that Justice provided, individuals were in fact waterboarded. Those acts were criminal. And the issuance of memoranda purporting to authorize them by Justice Department officials also constituted criminal acts under the rule in United States v. Altstoetter.

What White is attempting, and what Mukasey was attempting in his testimony, was to provide wiggle room for individuals who committed criminal acts under cover of state authority. In my own view, the interrogators down the line are not the most culpable parties—the policy makers who sat in comfortable offices in Washington, issued the orders, and wrote the memos that made this happen, are. I fully embrace the right of the culprits to a vigorous, well-managed defense, conducted by a person as able as White. But we need to recognize, in reading White’s remarks, that she’s conducting a defense of her former colleagues, not giving us a fair reading of the law.

So we come to the compromise that Schumer and Feinstein grasped for, and that White advocates here: let’s pass new legislation that makes it clear that waterboarding is unlawful. What could be easier?

This sounds perfectly reasonable. But it isn’t. First, George W. Bush, whom White formerly served, is the man at the end of the chain of individuals who authorized waterboarding, and the man whose reputation (or what’s left of it) hangs in the balance on this issue. He has staked out the position that the “program” is lawful. He will veto any legislation that “clarifies” the situation on waterboarding. So while Bush sits in the White House, what White is asking is simple: he should accept that waterboarding is lawful whenever Bush authorizes it. That flies in the face of the nation’s most fundamental values, and it mocks our commitment to be a nation in which no man is above the law.

Second, the major object of this maneuver is to stake out the position that the waterboarding that the Bush Administration actually undertook was perfectly lawful when it was done. That would of course come as some surprise to the people who were prosecuted and punished (and in some cases, executed) for this crime at the hands of American prosecutors. It would also demonstrate to the world that America views waterboarding as a heinous crime justifying the ultimate sanction when others do it to Americans, but something that the American president can authorize at his whim when it suits him to do so. This is not staking out a position of moral leadership in the world, but of moral depravity.

White offers a pragmatic political solution: lay off the Bush Administration over this issue. Give them a pass.

But some issues must be beyond the realm of partisan political give and take, and this is one. To allow it to become a matter of partisan compromise undermines and cheapens our state and the principles on which it rests. As William Wilberforce said in his greatest parliamentary address, politics “is not my principle, and I am not ashamed to say it. There is a principle above everything that is political.” For Wilberforce, a Conservative speaking in 1789, the principle he sought to advance was the abolition of the slave trade. As he did so, he rested his case on another already more broadly accepted proposition: that the torture of those under confinement was unlawful under the natural law, the law of nations, and the laws of Britain and her ultramarine possessions (including an upstart republic across the Atlantic). But that, of course, is just more inconvenient history.

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