WASHINGTON — How strange is this? The nation's chief law enforcement officer cannot say whether "waterboarding" is illegal.
At a recent Senate Judiciary Committee hearing, Attorney General Michael Mukasey acknowledged under questioning that he would feel tortured if he were waterboarded, but he staunchly refused to say whether it was illegal.
A heinous technique dating back to the Spanish Inquisition, waterboarding involves strapping a prisoner down and pouring water over his cloth-covered face to create a sensation of imminent drowning.
Mukasey — whose confirmation for the Cabinet post was championed by two Democrats, Sens. Charles Schumer of New York and Dianne Feinstein of California — dodged the legality question on grounds that he was told the technique is no longer used by the CIA on terror suspects.
The CIA and the Pentagon banned waterboarding in 2006, after three terror suspects had been given the treatment.
In testimony Tuesday, CIA director Michael Hayden told the Senate Select Committee on Intelligence, that the agency's interrogators had used waterboarding to extract information from three al-Qaida detainees in 2002 and 2003. One of them was Khalid Sheik Mohammed, the mastermind behind the 9-11 attacks on the U.S.
The prisoners were held in secret prisons overseas.
An anonymous intelligence officer told the committee that the CIA officers and contractors who conducted the waterboarding were told it was legal at the time. But he added: "The legal landscape has changed."
Waterboarding taken to its extreme could cause death, Mike McConnell, director of National Intelligence told the panel. "You could drown someone," he added.
McConnell said waterboarding remains a technique in the CIA's arsenal but that it would require the president's consent and the attorney general's legal approval before being administered.
Mukasey apparently considers it his role to protect the White House, the CIA and others who could be vulnerable to retroactive criminal charges or civil lawsuits if the U.S. use of waterboarding violated international law. Hence the Justice Department's stonewalling on the legality of the odious tactic.
Waterboarding is the crux of a Justice Department criminal investigation over whether the CIA illegally or otherwise improperly destroyed videotapes in 2005 of two terror suspects being harshly interrogated.
Mukasey has also lived up to his conservative credentials by opposing legislation that would protect whistleblowers who keep Congress informed about wrongdoing in government agencies. Such a bill would encourage people "to bypass supervisors (and) simply go to a member of Congress with their complaints," he lamented.
The attorney general — who can charitably be called "naive"– said that potential whistle blowers should first seek out supervisors and "take it up the line."
Muaksey, a long-time federal judge, has obviously been living in a well-guarded judicial bubble, not knowing that whistle blowers often tell the truth at a personal cost of their jobs and livelihood.
Sen. Charles E. Grassley, R-Iowa, is sponsoring a bill to expand existing protections for people who fear retaliation if they expose waste, fraud and abuse in the government.
The measure would basically overturn a 2006 U.S. Supreme Court ruling that government employees do not enjoy First Amendment protections when they report their concerns about government operations.
It's sad that the country has a man like Mukasey in charge of the Justice Department after the fiasco created by his predecessor Alberto Gonzalez, who rubber-stamped White House end runs around the law.
Mukasey said he could only render an opinion on waterboarding if he knew the circumstances of each situation.
Clearly, Mukasey is cut from the same cloth as Gonzales, believing in expansive powers for the presidency and on the same wave length about tough treatment of detainees.
Since he took over the Justice Department, Mukasey has refused to permit certain administration witnesses to answer congressional subpoenas to testify about the nine U.S. prosecutors who were apparently fired on political grounds.
He suggested that the administration believes it is shielded by executive privilege.
Mukasey seems to be a clone of Gonzales. Just when we were celebrating the near-demise of the hard-core conservatives in the Bush administration, we get the heartless Mukasey.
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