No Comment — November 2, 2007, 12:12 am

The Torture Litmus Test

Several days before his first meeting with the Senate Judiciary Committee, Michael Mukasey’s Justice Department handlers arranged a private meeting for him with a number of “movement conservatives.” Two different administration sources have described the meeting to me. During the meeting, Mukasey’s counterparts, largely figures associated with the Federalist Society, pushed him on two points in particular.

First, they wanted him to undertake that he would not appoint a special prosecutor to look into the U.S. attorneys scandal and related charges concerning political prosecutions. At this point it is clear that if an independent investigation were to be launched, it would quickly run head-on into some of the same figures who sat in the room with Mukasey. The email traffic which has surfaced already—and it is only a tiny fraction of the total—shows how Rove and Miers repeatedly relied upon the Federalist Society and its members to help them out in addressing recalcitrant U.S. Attorneys who would not debase their office by converting it into a political tool. Let’s be cynical and say that the first request they put to Mukasey was designed simply to protect themselves and keep their behind-the-scenes involvement with the Justice Department’s highest profile scandal so far out of the spotlight.

And second, they pushed aggressively on the torture question. They wanted Mukasey to pledge that he would toe the Administration’s line on “the Program,” that he would continue to protect those who authored the program with the cloak of an Attorney General opinion keeping them safe from prosecution.

Mukasey, I am told, gave vague reassurances on both points, “without completely giving away the shop.”

That meeting and the Judiciary Committee hearing that followed provide a basis for us to conclude that the Bush Administration has developed a new litmus test for its attorney general: he must be prepared to wink at torture publicly, and behind the scenes to issue opinions giving the authors of the program comfort.

There has been no shortage of litmus tests in the past: abortion, gay marriage, the flag amendment—whatever hot-button issue the G.O.P. cooks up for its next election campaign. But the torture litmus test is new, and it seems to be key for lawyers. It really is an exercise in Kool Aid drinking. If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything. Indeed, there is no question about it. Waterboarding is torture and has been understood to be torture in a formal sense for over a hundred years. Soldiers who used it were court-martialed, and the attempted defense of military necessity was smacked down by the Army’s Judge Advocate General in 1903. There is no shortage of other precedent. This is why Mukasey’s dodge on the issue—first a very primitive dodge, and then a more sophisticated one—is so troubling.

So why has torture emerged as a Bush Administration litmus test? My friend Jack Balkin nails this:

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just “a dunk in the water” in Vice President Cheney’s terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

And Jack summarizes the dilemma very accurately:

Which places any Attorney General nominee in a difficult bind: The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Hence, the debate around Michael Mukasey has really ceased to be about Michael Mukasey and his qualifications to serve as attorney general. It has become a debate about the torture issue. And protecting the authors of a criminal scheme from their certain ultimate fate: prosecution.

I have very strong conflicting views about the vote which is coming in the Judiciary Committee. I believe that Mukasey, as an individual, is exceptionally well qualified to serve as attorney general. I would approve the Mukasey who says he “personally” finds waterboarding abhorrent. But I am troubled by the “official” Mukasey who is being trotted out as something different. And I believe that the nation cannot, at this stage, accept the appointment of an attorney general who refuses to come clean on the torture issue. In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite.

If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.

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