No Mulligan for Mukasey

posted: 3:58 PM, November 1, 2007 - est

Senate Dems caught in a water hazard over torture

Driving home from a weekend in the mountains on Sunday, listening to news radio, my wife suddenly asked what the term “waterboarding” means.

I explained the gruesome details, which sounded familiar to her as a Chilean who fled the Pinochet dictatorship.

“Oh, you mean torture,” she said. “Why do they make it sound like some sort of new sport?” At which point I suggested she seek nomination as attorney general of the United States.

Her response to the image of someone being tied to a plank and dunked backward into a tub of water seemed a helluva lot more reasonable and authentic than that of Michael Mukasey, the current nominee chosen by the White House to replace Alberto Gonzales. During two days of questioning last week by the Senate Judiciary Committee, Mukasey was getting along just swimmingly until he got swept away by a simple, straightforward question: Did he or did he not consider waterboarding to be torture?

Mukasey circularly paddled around the query and finally wound up saying: “I don’t know what’s involved in waterboarding.”

My wife has an excuse. She’s a Spanish teacher whose native language isn’t English. But what’s Mukasey’s story? He’s a retired federal judge and former prosecutor from New York handpicked to replace the very man who gained infamy, in part, by authorizing torture techniques. Does Mukasey need a little memory refresher? Would committee chair Patrick Leahy (D-Vermont) have gotten a more forthright answer if, instead of pursuing his polite questioning, he had pushed aside Larry Craig and held down Mukasey’s head in a nearby Senate toilet bowl for 30 seconds?

“If it amounts to torture, it is not constitutional,” Mukasey said. But he refused to say that waterboarding was torture. Then it got worse. When asked by Democrats whether a U.S. president can blithely bypass a statute, if he can put himself above the law as George W. Bush did in authorizing his warrantless-surveillance program, all of a sudden Mukasey regained his legal memory and, essentially, said “Yes.” His affirmative answer was appropriately cloaked in legalese mumbo jumbo, but his endorsement of extralegal powers by an American president was unequivocal.

Kudos, then, to Connecticut Senator Chris Dodd, whose third-tier, nothing-to-lose presidential campaign has let him sprout a formidable pair of cojones . Earlier this week, Dodd said he had already made up his mind to vote no on Mukasey’s confirmation.

“That is about as basic as it gets. You must obey the law. Everyone must,” Dodd said, referring to Mukasey’s odd and chilling legal theory that the president of the United States is somehow not bound to respect the rule of law.