The "words of the legislation... are words that are general and upon which people on both sides of the debate have already disagreed. To point to this language or that language, it seems to me, is to pick nits at this point. People have disagreed about the generality of the language and said that it can be read two ways."
Finally, it all came to a head. Durbin wanted to nail him down. After Mukasey proved a little slippery -- emphasizing the scenario where waterboarding would "shock the conscience," i.e. doing it to get information of only "historical value" -- Durbin finally backed him into a corner.
So is it lawful to waterboard someone if doing so might save a large number of lives?
"Those circumstances have not been set out. That is not part of the program. We do not know concretely what they are, and we donât know how they would work."
So when it comes to non-military personnel (i.e. CIA personnel), that is still unresolved?
"It is unresolved... because I have not been presented with a concrete situation."
Update: Here's the transcript:
DURBIN: When I first met you in my office, I asked you if you would tell me who your heroes were. And you told me that you keep a picture of George Orwell on your office wall because of his essay, "Politics and the English Language," which I had not read.
And I got a copy and read it. It's dense. It's profound. I find it difficult to understand, but I respect you for looking at it carefully and admiring his thought process.
In that essay, Mr. Orwell is critical of misleading political speech and says, "As soon as certain topics are raised, the concrete melts into the abstract."
DURBIN: I would say, Mr. Attorney General, on the subject of waterboarding, that some of your words have melted into the abstract.
The last time that we met here was in a similar circumstance with the room half empty, and I asked a question which continues to be asked to this day about waterboarding. And I am still troubled as I listen to your answers.
Let me try to be specific and ask you three specific questions.
The first is this: You say in your letter to the committee, "Reasonable people can disagree," in reference to waterboarding. So, could you tell me who those reasonable people might be who disagree? Can you cite any court cases, legal scholars and others?
You referred to them as "people of equal intelligence, good faith and vehemence," I believe. So, I'd like to know who you're going to cite as the reasonable people who disagree that waterboarding is not torture.
The second thing I'd like to ask you, when you replied to Senator Biden, you suggested that waterboarding, under certain circumstances, would not shock the conscience. And I think the reference was made to nuclear weapons and discovering nuclear weapons.
If that is the case, can you explain to me why our government has now discontinued and prohibited this form of interrogation if there are circumstances which, in your mind, could justify it?
And the third question: You said that your lack, or your refusal or your unwillingness to take an unequivocal position on torture couldn't jeopardize anyone because our troops all wear uniforms. And so, they're protected against torture under existing conventions and statutes.
But, certainly, there are American personnel -- special forces, CIA agents, employees of the State Department -- who could be in jeopardy or danger who don't wear uniforms if there is uncertainty about the U.S. position on the issue of waterboarding.
MUKASEY: With respect to your first question you asked -- Who are the reasonable people who have disagreed about whether waterboarding is torture? -- there have been people in this chamber who have disputed whether under certain circumstances it wouldn't be legal for the president to engage in techniques described by at least one of them as torture, but then pulled back, in order to obtain information to save American lives.
MUKASEY: And those are matters of record.
DURBIN: Mr. Attorney General, this body, in this chamber, if you refer to the Senate...
MUKASEY: I'm referring to the Senate.
DURBIN: ... has voted clearly, on a bipartisan, overwhelming vote, that we would prohibit such practices, with the McCain amendment.
So if you're going to rely on the chamber, the chamber's expressed its will in exactly the opposite position you've taken.
MUKASEY: And the chamber, on another occasion, declined, voted down a bill that would forbid waterboarding.
And there were people, in the course of the debate on the measure that you mentioned, who said that the language was so general that it would open things up to all sorts of behavior that they considered objectionable and cruel, which I would think would include waterboarding, because they are people who say that.
DURBIN: If the Detainee Treatment Act, I think, is clear, in terms of the law of the land and the expression of this chamber, and even went so far as to offer amnesty, immunity to employees of the government who have been engaged in it, you still think that the jury's out on whether the Senate believes that waterboarding is torture?
MUKASEY: The question is not whether the Senate is out on this or that technique.
MUKASEY: The question is whether the Senate has spoken clearly enough in the legislation that it has passed and that the Congress at large has passed and that the president has signed, which is all anybody's really got to work with.
DURBIN: So, where is the lack of clarity in the McCain legislation?
MUKASEY: The words of the legislation, of all the legislation that's thus far been passed, are words that are general and upon which, as I said, people on both sides of the debate have already disagreed.
To point to this language or that language, it seems to me, is to pick -- is to pick nits at this point. People have disagreed about the generality of the language and have said that it can be read two ways.
DURBIN: I might just say that, as the chairman has noted here as a matter of record, Senators McCain, Warner and Graham, the lead sponsors of this legislation, have said that under the Military Commission Act waterboarding is a war crime. It is unequivocal.
How do you -- at this moment in time, you have employees of your department in Iraq counseling the police and army there not to use waterboarding and torture. And their standard, unfortunately, at least leading up to this moment, has been that it depends on the circumstances.
Do you see the problem with your ambivalence on this issue when it comes to setting a standard that we are trying to teach to the world, a standard we want our own people to be protected by?
MUKASEY: The standards -- the problems posed by what you call ambivalence, which I don't think is really ambivalence, but rather a due caution for the reasons that I outlined, are already matters of record.
I want to answer the second question, because it suggests that I said I would...
DURBIN: It's on the Biden question.
MUKASEY: I'm sorry?
DURBIN: It was on the Biden -- Senator Biden's question. Is that it?
MUKASEY: No. It was your second question, which I -- regrettably, my notes aren't...
DURBIN: The two other questions related to Senator Biden's question about shocking conscience.
MUKASEY: Right, that I said waterboarding would not shock the conscience. What I described was a situation in which it would shock the conscience.
Insofar as it being a relative standard, that was something that was put in place by the person who wrote the decision in which that first appears. So that wasn't something that I put there.
DURBIN: So, for clarity, then, I assumed that -- correct me, please -- that you were arguing that the use of such techniques to discover nuclear weapons would not shock the conscience.
MUKASEY: No. What I was saying was that the use of such techniques to discover information that could not be used to save lives and was simply of historical value would shock the conscience.
DURBIN: Well, that's half the answer. So let's go to the other half. What about the circumstances where the information would save lives, many lives?
MUKASEY: Those circumstances...
DURBIN: Would that justify it?
MUKASEY: Those circumstances have not been set out. That is not part of the program. We don't know concretely what they are. And we don't know how that would work.
DURBIN: Under the military standards, clearly -- military interrogation standards, they are not interested in the danger. They have just said, unequivocally, that their personnel cannot engage in this technique.
So you're saying that, when it comes to the nonmilitary, that is still unresolved, as to whether they can use these techniques...
MUKASEY: It is unresolved.
DURBIN: ... in your mind?
MUKASEY: Because I have not been presented with a concrete situation. And I would...
DURBIN: I've gone over my time, and I apologize, Mr. Chairman.
Thank you, Mr. Attorney General.