Two weeks ago, Attorney General Michael Mukasey came to testify before the Senate Judiciary Committee armed with a fact that should have placated the Dems. He knew he was set to get walloped if he said again that his mind still wasn’t made up on waterboarding. So he told the panel that waterboarding isn’t currently legal — but his mind still isn’t made up as to whether it’s absolutely illegal.
But that didn’t seem to placate anybody. Instead of the Dems reacting with delight that waterboarding wasn’t currently authorized by the Justice Department, they were shocked at Mukasey’s argument that the technique could possibly be authorized for use in the future.
But with the Senate passing a bill that would absolutely ban waterboarding, the administration has kept at it. And today, Steven Bradbury, the controversial acting head of the Justice Department’s Office of Legal Counsel, reiterated what Mukasey said late last month. And once again, Bradbury says that waterboarding might be used, but before it was used, the CIA would need to first determine that it’s “necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership.” That’s the administration’s “bright line” against torture.
This time, the administration seems to be getting the coverage it’s wanted. The AP takes a look at Bradbury’s testimony and headlines (seemingly forgetting Mukasey’s testimony), “Justice Dept: Waterboarding not legal: Justice Department Says for First Time That Waterboarding Is Not Now Legal.”
But while Bradbury doesn’t say anything new about waterboarding, he does give the most detailed narrative I’ve seen for how the Justice Department has reacted to Congress’ and courts’ attempts to prohibit the use of torture. You can read the whole thing here. More from Marty Lederman on this here.