Today’s Must Read

When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off “our enemies,” for example), but the key to his rationale appears to be his expressed fear that the attorney general’s public acknowledgment that waterboarding is torture would place interrogators in “personal legal jeopardy.”

By this logic, he can’t come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is “steering clear of a potential legal quagmire for the Bush administration” by not answering the question.

One legal expert provides the worst case scenario:

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.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.

A Pandora’s Box! Does Mukasey have any choice?

But the key word here would have to be “theoretical.” “Theoretically,” yes, Mukasey’s outright condemnation of waterboarding as “repugnant” not just to him personally, but also to the law, would open the door to criminal liability.

But there would appear to be some insurmountable obstacles to that actually happening.

On the question of criminal liability, Marty Lederman, formerly of the Justice Department’s Office of Legal Counsel, the office that later provided the legal basis for the use of waterboarding in the field, writes that “There is no possibility — none — that the Department of Justice would ever prosecute anyone who acted in reliance on OLC’s legal advice about what techniques were lawful.” Such a prosecution would in effect pit the Justice Department against itself.

The Times adds that “prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization.” (The threat of lawsuits, though far less dire, seems a greater possibility.)

But that theoretical fear is a strong one. The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It’s for that reason the OLC’s ability to issue “free get-out-of jail cards” made Goldsmith’s tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn’t have nominated someone who might take them back.