As the Attorney General nominee was testifying before the Senate Judiciary Committee, he was questioned repeatedly about the use of the technique known as waterboarding and whether he considered it legal. Judge Michael B. Mukasey, the nominee continued to avoid giving a legal opinion on the practice. According to legal experts, he had no choice but to avoid the rendering of an opinion because of the legal ramifications of the Attorney General calling the practice illegal. By doing so of course he would open the floodgates of litigation from detainees that have been subjected to the practice. For all practical purposes let’s acknowledge that this practice constitutes torture.
So the real question is, does the Judge condone torture or not? Forget the legal semantics; I think the American people need to know whether their next Attorney General will continue giving legal cover to this administration for the practice of torture? The truth of the matter is that we won’t get an answer to that question and neither will the Senate. No nominee will ever provide such damning testimony against the person who nominated them. If the AG were to acknowledge the illegality of the practice, everyone would be liable all the way up to Mr. Bush himself.
The biggest problem for Mr. Mukasey remains his refusal to take a clear legal position on the interrogation technique. Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey’s calculations as he parried questions from the committee this week. Some legal experts suggested that liability could go all the way to President Bush if he explicitly authorized waterboarding.
So, now the question is no longer whether the nominee supports torture, the debate has now been refocused to political cover for those who authorized the torture. How will we ever know if this nominee supports the legal precedence or not? How do we know if he will cave into the political pressure as the previous occupant did or will stand firm against such practices? It appears another legacy of this administration will be that we can no longer ask our AG nominees their views on torture, or this form of it anyway. If they answer, it could be used to open prosecutions of past administration officials. Once you open the door to torture, I guess there’s no turning back.
Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.
Then of course there are the international courts, which we have no problem bringing other despots in front of, but disavow their jurisdictions when our despots are accused of wrongdoing. This was demonstrated when Donald H. Rumsfeld, former Secretary of Defense was visiting France and had to make a hasty retreat when a criminal complaint was filed against him for torture by human rights groups. Because of our public entry into the torture arena the concept of “universal jurisdiction” for war crimes and torture is no longer in play. The US which once stood as a bulwark for human rights and continues to make allegations against other countries (Iran most recently) is now displaying its hypocrisy in full view of the world.
Mr. Specter, who said he was briefed on the interrogation issue this week by the C.I.A. director, Gen. Michael V. Hayden, noted that human rights groups had filed a criminal complaint on torture against Donald H. Rumsfeld, the former defense secretary, while he was visiting France this month. Such cases, based on the legal concept of “universal jurisdiction” for torture and certain other crimes, have proliferated in recent years, though they have often posed more of an aggravation than a serious threat.
With no threat of prosecution and with the former watchdog now engaged in the practice, what is to prevent every nation from participating? So now not only can we thank this administration for shredding the US Constitution, we can also include the dismantling of the Geneva Convention treaty. Who needs communism and fascism, we have neo-conservatism and it is a whole lot more effective at dispensing with those inconvenient human and civil rights.