The President’s nominee for Attorney General was introduced to the committee by a Democratic Senator, who vouched for his integrity, his qualifications, and “his interest in working with all of us in making our homeland more secure, and at the same time protecting our citizens' rights and liberties.”
He repeatedly told the Judiciary committee that he was horrified by the pictures of Abu Ghraib; that he would not condone torture or rendition; that he would prosecute those who violated the laws against torture; that he understood there were limits on the President’s power as Commander in Chief and that he rejected the “torture memo” issued by the Office of Legal Counsel in August 2002:
"Like all of you, I have been deeply troubled and offended by reports of abuse. The photos from Abu Ghraib sickened and outraged me and left a stain on our nation's reputation. And the president has made clear that he condemns the conduct and that these activities are inconsistent with his policies. He has also made clear that America stands against and will not tolerate torture under any circumstances. I share his resolve that torture and abuse will not be tolerated by this administration and commit to you today that, if confirmed, I will ensure the Department of Justice aggressively pursues those responsible for such abhorrent actions."
“We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.”
“Senator, this president is not going to order torture. We don't condone it. I will say, with respect to the opinion, the [OLC torture memo] has been withdrawn. I reject that opinion. It has been rejected. It does not represent the views of the executive branch. It has been replaced by a new opinion that does not have that discussion.”
“Senator, the [OLC torture memo] has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it’s been rejected by the executive branch. I categorically reject it. And in addition to that, as I’ve said repeatedly today, this administration does not engage in torture and will not condone torture.”
“Senator, if I might respond to that, the president is not above the law. Of course he’s not above the law.”
“I want to emphasize to the committee how important I think treaties like Geneva are for America, because they do represent our values, and in many ways and at many times, they have protected our troops. And it is true that part of winning the war on terror is winning the hearts and minds of certain communities.”
Q: “I was glad to hear you say to -- and I’m -- correct me if I misunderstood you, but to Senator Durbin that it is wrong if somebody -- if a U.S. personnel turns somebody over to another country knowing they’re going to be tortured. Did I understand you correctly on that?”
A: “I believe that that is the law, and naturally U.S. policy.”
Q: “And so they would be prosecuted, the people who did that?”
A: “Yes, sir. Yes.”
The hearing took place in 2005. The nominee was Alberto Gonzales.
I assume Michael Mukasey will be a better Attorney General than Gonzales. He could hardly be worse. He doesn’t owe his career to George W. Bush. He has a reputation for independence and integrity that Gonzales never did. He sometimes said no to the administration as a judge. Overall, he gave somewhat better answers at his confirmation hearings than Gonzales—less “oh but we were doing our best” defense of the original OLC torture memo; more willingness to admit that the Commander in Chief power has limits.
So maybe his ringing denunciations of torture today were actually sincere. Then again, maybe not. His answers sounded better than Gonzales’, but he was asked much easier questions. When Gonzales refused to take a position on the legality of waterboarding, he got detailed written follow-up questions. I would be surprised if there’s any follow up to Mukasey’s claim he couldn’t comment on the admissibility of evidence obtained through waterboarding, because he didn’t really know what waterboarding was.
None of the statements that I’ve read today give me any real information or reassurance about what he will do as Attorney General. Not without a specific denunciation of the 2004 and 2005 OLC torture memos; or a willingness to say that specific techniques like waterboarding, hypothermia, and painful stress positions are banned; or a pledge to release the publicly release the legal justifications for “enhanced interrogation” & wireless surveillance instead of treating the administration’s constitutional law arguments as state secrets. The statements that “I categorically denounce torture,” “the United States doesn’t torture,” “torture is antithetical to our values”—they are meaningless from members of this administration. It’s past time for the press to learn this, and to stop writing credulous headlines about how the “Attorney General Nominee Rejects Torture.” But I doubt that’s going to happen when the Democrats abdicate and fail to ask hard questions.
UPDATE: Emily Bazelon has a similar take.
(edited for typos, etc.)