Anyone with a conscience has an opinion on waterboarding; the would-be attorney general should come clean on his.

by Rosa Brooks

Maybe it was in honor of the Halloween season.

The Bush administration's Justice Department has been a horror show for years now, complete with gruesome exhibits like the infamous 2002 "torture memo." And in his recent Senate confirmation hearings, the attorney general nominee, Michael Mukasey, seemed determined to honor the department's most ghoulish traditions.

Asked if he thinks "water-boarding" constitutes torture, Mukasey refused to say one way or the other, instead offering up such weird incantations as "if water-boarding is torture, torture is not constitutional." If you dabble in black magic, that statement probably makes sense -- but otherwise, it's so much malignant hocus-pocus.

Mukasey can't decide if nearly drowning someone in order to extract information is torture? Life (and law) is full of hard questions, but this is one of the easy ones. Water-boarding is one of the oldest and most classic forms of torture. The Spanish Inquisition used it. Pol Pot's genocidal Khmer Rouge used it. During World War II, Japanese soldiers used water-boarding against civilian detainees and U.S. military POWs -- and were later prosecuted for this by U.S. military tribunals. Until George W. Bush and Dick Cheney took office, the U.S. government and U.S. courts consistently took the position -- along with the rest of the civilized world -- that water-boarding was torture.

On Tuesday, Mukasey "clarified" his views in a letter that still offers no opinion on whether water-boarding (or any other interrogation technique) might or might not constitute torture. According to Mukasey, water-boarding is "repugnant," but he can't say whether it's illegal because, among other things, it would depend on the circumstances, he's not sure if the CIA actually uses it, and he wouldn't want any CIA interrogators who might have used it to think they could be in legal trouble.

This is garbage.

I know it's Halloween week, but Mukasey's not auditioning for a job as a spook. Mukasey wants to be the chief law enforcement officer of the United States -- the man charged with issuing authoritative executive branch interpretations of the law, with advising the president on what legislation to seek from Congress if he thinks the laws need to be changed and, ultimately, with deciding when to prosecute officials who have broken the law. And if that's the job he wants, he needs to show the Senate that he has the wit and the will to do it.

If Mukasey thinks that water-boarding is not just repugnant but constitutes torture or cruel, inhumane or degrading treatment under current law, he should just say so. If CIA interrogators currently use water-boarding, they'll now be on notice that the likely incoming attorney general considers it illegal. But should they fear prosecution for any past use of water-boarding? No -- prior Justice Department memos that gave the green light to the practice would effectively immunize interrogators who relied on them in good faith.

What if Mukasey personally thinks water-boarding is abhorrent and should be prohibited, but thinks it's not clearly illegal under current law? Reading between the lines of various government memorandums, the administration's legal defense of water-boarding (and similar techniques) appears to rest on the argument that interrogation practices are unlawful only if they "shock the conscience," and this is a highly subjective standard. (If you don't have much of a conscience, you're unlikely to find water-boarding shocking.)

That argument rests on a dubious interpretation of Supreme Court precedent. But perhaps Mukasey thinks it's strong enough to prevent him from saying categorically that water-boarding is currently illegal in all circumstances.

Fine -- then he should explain this, and assure the Senate that he will personally urge the president to seek legislation to close any loopholes that permit water-boarding and similar practices.

The Justice Department will inevitably be something of a haunted house for years to come, in need of exorcism to get rid of the ghosts of torture-enablers past. In his distinguished career as a judge, Mukasey has often shown enough independence and thoughtfulness to earn him praise even from many Democratic critics of the Bush administration. If he can unambiguously repudiate water-boarding and similar interrogation tactics, the Senate should confirm him as attorney general.

Of course, maybe Mukasey doesn't want to say that water-boarding is torture because, deep down, he considers it an appropriate interrogation tactic. But if that's what's really going on here, Mukasey should take off his nice-guy mask and let everyone see the true face underneath. He should tell the Senate, loud and clear, that he thinks the U.S. should abandon its most basic values and insist on the right to torture prisoners.

And the Senate, if it has any sense of integrity at all, should refuse to confirm him as attorney general. Around the world, there are dozens of abusive regimes that would probably be delighted to have a torture proponent as their top law enforcement official.

Let's not join their ranks.

-- rbrooks@latimescolumnists.com
Copyright 2007 Los Angeles Times