Whether they voted for Mukasey or not, Democrats widely want him to examine the interrogation tactic designed to make the subject think he is drowning, and answer definitively: Is it illegal torture?
"I do believe he will be a truly nonpolitical, nonpartisan attorney general; that he will make his views very clear; and that, once he has the opportunity to do the evaluation he believes he needs on waterboarding, he will be willing to come before the Judiciary Committee and express his views comprehensively and definitively," said Sen. Dianne Feinstein of California, one of the six who voted with the majority for confirmation.
Well, here he is, testifying that, basically, that the ends justify the means:
Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?
Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."
What does "cost" mean, Biden wanted to know.
Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.
It's really hard for me to believe that someone who used to be a federal judge can blow that sophistry in a congressional hearing with a straight face. If you don't know what they know, then you can't know in advance if what they know might save lives, right?
I honestly don't know why everybody's so hung up on waterboarding specifically at this point. If this is their legal understanding, then they can use the rack, they can break arms and legs and they can pull teeth out with a pair of pliers. There is no logical difference between any of that and waterboarding if the only moral and legal guideline is that "it might be used to save lives."
I'd like to once again thank all those who voted to confirm Michael Mukasey and those who didn't bother to vote. It was an excellent demonstration of leadership. (My recollection is that many of the Democrats felt they had already "won" by forcing out Alberto Gonzales.) But maybe next time, we could just have a a little baseline that the Attorney General of the United States can't believe that torture can legally be used if it might save lives. I think that might be considered a basic qualification going forward.
Update: Kelli Arena says the good news is that this is a very cordial hearing, without the "apoplectic fits" one is accustomed to from this committee. I don't think Kelli has ever heard about the "banality of evil."