Yesterday, the Senate joined the House and voted to “prohibit the CIA from using waterboarding and other harsh interrogation methods,” approving legislation that would bring the CIA’s interrogation methods in line with the Army Field Manual.
President Bush has threatened to veto the bill. If Congress manages to override his veto, Bush could issue one of his infamous signing statements. But in an interview with NPR, Attorney General Michael Mukasey said that if Bush issues a signing statement on waterboarding, no interrogation officials will abide by it and the President will have to do the torture himself:
MUKASEY: The question of conflict between the president’s Article II powers and statute is one that I think has been, to a large extent, overblown. […]
OK, let’s assume that the president wants, despite a finding of illegality under law, to have waterboarding done, who is it precisely that he’s going to get to do it? He would virtually have to do it himself.
Mukasey has repeatedly said that he personally finds waterboarding “repugnant” and even believes that it would be torture if administered on him. He still refuses, however, to say whether he believes the tactic is illegal.
UPDATE: In 2005, after Congress passed a law outlawing the torture of detainees, Bush issued a signing statement saying that he would “construe [the law] in a manner consistent with the constitutional authority of the President…as Commander in Chief.”
UPDATE II: Today in the White House press briefing, Perino addressed Bush’s upcoming veto:
[T]he reasons the President would veto the bill are the reasons that are laid out in our statement of administration policy, which is available on the OMB website. There were four basic reasons for it. But the main reason is that it would repeal the entire enhanced interrogation program that this Congress passed on a bipartisan basis in October of 2006. It’s the program that General Hayden has said has saved lives. This is not the President talking, this is the intelligence community.
And I think that everyone will just have to put it to a — they’ll have to ask themselves, do you trust the intelligence community more than you trust Democrats who are beholden to their left wing? And that’s the debate that this country is going to have.
SHAPIRO (voice-over): Mukasey has said he finds waterboarding personally repugnant and that he might consider it torture if done to him. But on the plane flying to Baghdad, he told me that would not affect his consideration of whether it is a legal interrogation technique. Because in the context of a CIA interrogation, he said it would be used on very different people in very different circumstances.
Mukasey quoted CIA Director Michael Hayden’s statement that out of a large number of terrorism detainees, 100 were subjected to coercive interrogation techniques.
MUKASEY: And of those three were waterboarded. So these are people who self-select for their ability to resist the technique.
SHAPIRO (voice-over): Congress has passed laws in the last few years that Mukasey says could relate specifically to waterboarding; the Military Commissions Act and the Detainee Treatment Act, for example.
But I pointed out the president has asserted the right to ignore laws passed by Congress using his commander in chief powers under Article II of the Constitution. Mukasey said he doesn’t think that’s a serious threat.
MUKASEY: The question of conflict between the president’s Article II powers and statute is one that I think has been, to a large extent, overblown.
SHAPIRO (voice-over): Plus, he said, if the president decides to ignore a law that appears to outlaw waterboarding and authorize the technique, there are other problems.
MUKASEY: OK, let’s assume that the president wants, despite a finding of illegality under law, to have waterboarding done, who is it precisely that he’s going to get to do it? He would virtually have to do it himself.
SHAPIRO (voice-over): Mukasey said the people who would ordinarily do the waterboarding, CIA interrogators, just wouldn’t do it under those circumstances.