But Mukasey won't speculate about future water-boarding, either, claiming he will not be drawn into "imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities." He also refuses to tell "people in the field ... what they have to refrain from or not refrain from in a situation that is not performing."
Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey's eyes at the witness table in the Hart Senate Building, America's lawyer cannot hazard an opinion as to its legality.
Joe Biden, D-Del., gets Mukasey to obfuscate even further. Mukasey explains to Biden that the legal test for torture—conduct that "shocks the conscience"—has less to do with shocking the conscience than the exigency of the situation. Under his test, torture that "shocks the conscience" can be "balanced against the information you might get that couldn't be used to save lives." That's not a legal rule. It's a judgment call. Biden calls him out on it: "You're the first person I've ever heard say what you just said ... I just never heard the issue of torture discussed in terms of the relative benefit that might be gained from engaging in the technique."
Russ Feingold, D-Wisc., pounds away at Mukasey's claim that he can't define water-boarding as torture without "tipping off our enemies about how we apply our laws." If that's so, wonders Feingold, "How could you ever prosecute such acts as crimes?" Mukasey replies that a subcontractor was once prosecuted for abusing a detainee. See? Problem solved.
Dick Durbin, D-Ill., gets off the best line of the day when—citing Mukasey's statement that "reasonable people can disagree" about the legality of water-boarding—he asks the attorney general to name some on the pro side.
And Sheldon Whitehouse, D-R.I., tries to get Mukasey to explain why the Justice Department is investigating the destruction of the CIA torture tapes, but not investigating the underlying torture itself.
Mukasey's reply, "I don't start investigations out of curiosity," speaks for itself. When Whitehouse tries to get Mukasey to agree that they both know enough classified information to have a very concrete, nonspeculative legal discussion about whether what happened on those tapes is legal, Mukasey again insists that whether or not what happened on those tapes is legal is about which "certifications were given" and "who permissibly relied on it." Whitehouse calls this the "Nuremberg defense. ... I had authorization and therefore I'm immune from prosecution."
More and more frequently, we hear members of the Bush administration crying about the evils of "lawfare"—the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You'd think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it's better to make them up in secret as you go along.