Today’s Must Read

Last time around, Attorney General Michael Mukasey had more than a little trouble telling the Senate Judiciary Committee whether waterboarding is torture. “If it amounts to torture, then it is not Constitutional” just wasn’t cutting it.

But this time, he’s coming ready. He laid it all out in a letter to the panel last night. When he sits down for his hearing this morning, he’ll say… I can’t tell you if it’s torture, because we’re not doing it now anyway and there’s no use talking about it if we’re not even doing it — which doesn’t mean that we won’t do it, but we really probably won’t.

Or as he puts it, if I may quickly summarize his 3-page letter:

“[I] have concluded that the interrogation techniques currently authorized in the CIA program comply with the law…. I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not be, used in the current program…. It is precisely because the issue is so important, and the questions so difficult, that I, as Attorney General, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never present themselves in the future.”

The clear intended message here for the Democrats on the panel is that Mukasey would never approve waterboarding, but they’re not going to get him to say why. Somehow I don’t think they’ll be completely satisfied. Especially if he repeats this line from his letter:

“There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

So — what’s up? Marty Lederman, a former lawyer in the Justice Department’s Office of Legal Counsel, speculates that what’s really driving Mukasey’s refusal to address the question is that “such a repudiation would undermine the legal basis for other of the ‘enhanced’ CIA interrogation techniques” — techniques such as stress positions, inducing hypothermia, sleep deprivation and the like.

Remember also that Mukasey has expressed confidence in Steven Bradbury, the current head of the Office of Legal Counsel, who has reportedly approved all these techniques (and waterboarding). And in his statement today, Mukasey seems to be saying above that he’s approved them too (minus waterboarding). He supports the current system and doesn’t want to rock the boat. With the most controversial technique eliminated, all this unwanted scrutiny will hopefully recede.

We’ll be providing live updates of Mukasey’s hearing, which starts at 10 this morning.