Mukasey: Legally conservative

Emily Percival

Emily PercivalIf one wasn’t familiar with the term “waterboarding,” one might think it a new form of extreme sport. It isn’t, of course. It’s a form of torture in which a person is strapped to a sloped surface, all the blood rushing to his or her head, while water is poured over the face and, because of the angle, forced into the lungs.

Waterboarding has been legally defined as torture by a myriad of federal decrees: Detainee Treatment Act (DTA), which prohibits the use of waterboarding and other torture techniques by the U.S. military, for one, as well as the 1947 case of Yukio Asano, a Japanese officer, who received 15 years’ hard labor for waterboarding a U.S. citizen. Given its definition and illegality, why would newly confirmed Attorney General Michael B. Mukasey refuse to equate waterboarding with torture?

This is the question asked by the Senate during Mukasey’s confirmation hearings and perhaps the single issue that has resulted in the narrowest margin of confirmation in 50 years (he was confirmed in a 53-to-40 vote). When Mukasey refused to comment on whether waterboarding was a form of illegal torture, Senate Democrats were in uproar. What about waterboarding isn’t torture? What about torture isn’t illegal?

It turns out, Mukasey’s answer, while unsettling, does have an ounce or two of legal validity. In a following statement, Mukasey asserted that yes, waterboarding is illegal under the DTA, but the DTA only pertains to the military: and this does not include other governmental organizations like the CIA. According to Sen. Dianne Feinstein, D-Calif., Mukasey’s answer reflects the reality that more legislation is needed to prevent the use of waterboarding across the board. Most importantly, Mukasey’s statement also asserts that “the president is no less bound by constitutional restrictions than any other government official,” which demonstrates his willingness to challenge the executive branch, a quality lacking, one might say, under the previous attorney general.

Not that there aren’t major concerns to be had. Mukasey is, after all, a conservative. He supports the USA PATRIOT act (he claims the worst thing about it is its name) and advocates nondisclosure in terror cases in order to protect national security.

Sen. Feinstein’s rebuttal to his many faults is one that I find particularly valid; she argues, “voting [Mukasey] down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.” As liberal thinkers, we’re not going to be terribly pleased by anyone Bush nominates to be the next attorney general. What would be a shame would be voting down a qualified conservative without undue loyalty to the president when the alternative is giving the White House near complete control. We’re under a conservative executive, and that executive gets to nominate. The election is nearing, and there will, I trust, come a time when attorneys general and other governmental positions are a little more liberal than some would like, instead of a little more conservative. Until then, Mukasey, not a partisan hack, not a blind Bush follower, might have to do.