Michael Mukasey is the next U.S. Attorney General. After passing through the Senate Judiciary Committee by a narrow 11-8 margin made possible by two prominent Democrats crossing party lines – Dianne Feinstein (Calif.) and Chuck Schumer (N.Y.), the nomination finally proceeded to a vote by the full Senate, where confirmation was all but guaranteed.

[I]f Congress seeks to declare certain interrogation techniques illegal, nothing prohibits it from doing so.The Senate’s approval marks the culmination of an unexpectedly controversial series of proceedings, during which Mukasey created a firestorm by refusing to categorically denounce as torture the interrogation technique known as “waterboarding.” As the smoke surrounding the confirmation saga begins to clear, it appears that after a frightening bout of partisan grumbling and a measure of doctrinal fumbling, Congress finally got it right.

Initially seen as a non-partisan, well-experienced, “shoe-in” candidate, Mukasey’s difficulties before the Judiciary Committee began last month when, responding to a question by Sen. Sheldon Whitehouse (D - R.I.) as to whether waterboarding was unconstitutional, Mukasey claimed that he “didn’t know what was involved with the technique.” Outraged by Mukasey’s apparent obliviousness to a subject of widespread public debate, a cadre of disgruntled ranking Democrats sent a letter to Mukasey describing the process and seeking clarification of Mukasey’s views on the technique. As the letter explained:

In some cases, bound prisoners are completely submerged in water. In other instances, water is forced into the mouths of prisoners. Another variation involves placing a cloth over the face or forcing it into the mouths of prisoners, followed by water being poured into the nostrils of the prisoner. In yet another variation, cellophane is placed over the face and water is poured over the head of prisoners without any water entering the mouth of the prisoner. What all of these methods have in common is the intent to create a fear of death through drowning.

Mukasey responded to the senators’ solicitations with a four-page memorandum which, while condemning the practice as “repugnant,” stopped well short of a formal declaration of illegality. Mukasey justified his non-opinion on three grounds: (1) he had not been briefed on classified interrogation programs and the techniques employed therein; (2) he was unwilling to threaten field officers employing such techniques pursuant to past Justice Department authorization with an opinion; and (3) he did not want to provide enemies a window into U.S. intelligence operations.

Mukasey’s justifications are concededly dubious given the overall transparency and widespread availability of DOJ pronouncements on the subject of torture and the low probability that field officers would ever be prosecuted for actions taken within the contours of law. However, in evaluating his response (and, indeed, his candidacy), we would be better served to examine what the nominee actually said about torture, rather than how he justified what he did not say. From this standpoint, Mukasey’s response to the Committee’s query actually goes well beyond the sort of pronouncement we might expect from an executive nominee prior to taking office. The committee's approval of his nomination was unduly controversial, and, ultimately, well-deserved.

Notably, Mukasey's letter outlines a detailed doctrinal framework that would govern the legality of waterboarding, encompassing several relevant sources of law such as the federal statutory definition of “torture,” the 2005 Detainee Treatment Act, several DOJ memos following the infamous 2002 “Torture Memo,” Common Article 3 of the Geneva Conventions (below) and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Critics within the Senate and outraged citizens have argued that an elaborate recitation of relevant considerations does little to answer the simple question posed. They are not unjustified in their observation. Nonetheless, such a recitation should at least make clear that the legality of questionable interrogation practices like waterboarding is not a determination to be made on the basis of ethereal notions of moral repugnancy or ad hoc gut reactions. Rather, such a determination must be subject to careful consideration of a constellation of authorities that implicate, at bottom, the meaning of our international treaty obligations and our laws in the post-9/11 world.

With this in mind, should we not commend Mukasey for declining to address the issue as if he were responding to an opinion poll, electing instead to lay out the sort of sophisticated analysis he would employ were he to be confronted with the question in future?

[W]e would be better served to examine what the nominee actually said about torture, rather than how he justified what he did not say.Mukasey’s most significant observation during the hearings was that the 2005 Detainee Treatment Act incorporates standards set forth in the Army Field Manual on Intelligence, among which is an express prohibition of waterboarding as an interrogation tactic by military personnel. At first glance, this would seem to answer the question. However, Mukasey noted importantly that Congress has permitted the CIA to employ interrogation techniques prohibited by the Army Field Manual, and that waterboarding might be among these techniques. The implication here is twofold: first, a formal, across-the-board declaration that waterboarding is illegal might contravene Congress’s CIA exception; second, if Congress seeks to declare certain interrogation techniques illegal, nothing prohibits it from doing so.

Now there’s an idea: instead of lambasting their otherwise ideal nominee for choosing not to address a question to which it already seem to know the answer, Congress should resolve any confusion ex propio by regulating in this area. Indeed, the reservoir of constitutional authority for Congress to outlaw waterboarding (Mukasey has stated clearly that were Congress to do so, the president would have no overriding constitutional authority to continue the practice) may reformulate the controversy surrounding Mukasey’s confirmation.

Perhaps the problem is not Mukasey’s supposed equivocation, but Congress’s inertia and acquiescence on this issue, and traditionally in the realm of foreign affairs. Aisle-hoppers like Sen. Feinstein seem intent on waking the sleeping giant sitting atop The Hill, as suggested by her promises to close the loopholes in the DTA and forbid waterboarding. But, with key Democrats – most notably, Sens. Clinton and Obama – unsuccessfully aligned against Mukasey’s confirmation, it remains to be seen whether there will be any bite to Congress’s bark after all.
[CNN, Senate's Letter to Mukasey, Mukasey's Response]   

APPENDIX

• Article 3 Common to the Geneva Conventions

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

( a ) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

( c ) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

2. The wounded and sick shall be collected and cared for.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.