Thursday, October 18, 2007

Meet the New Boss: Judge Mukasey is Agnostic on Whether Waterboarding is Lawful

Marty Lederman

Just now, in response to repeated questions, he insisted that he did not know enough to say whether waterboarding, or any other technique, is torture, cruel treatment under Common Article 3, or otherwise unlawful. It's really remarkable how far we have fallen when a jurist of Judge Mukasey's caliber cannot answer such questions without hesitation.

[UPDATE: Talking Points reports that Mukasey also refused to disclaim the idea that the President has a constitutional power to violate FISA. (Watching his early colloquy with Leahy just now, I see that Mukasey cites the Prize Cases as authority for the President disregarding a statute -- but under the Prize Cases, not only wasn't Lincoln acting contrary to statute; his conduct was authorized by statute.)

And Human Rights First reports that Judge Mukasey has testified that interrogations are not necessarily governed by Common Article 3, notwithstanding the Court's ruling in Hamdan -- an argument that even the Bush Administration has disclaimed!]

But really, did we have reason to expect any better -- to think that Judge Mukasey would opine that his new boss has been violating the law? The real disappointment is that the Democratic Senators don't seem to care about their own prerogatives.

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