As you’ll recall, back when Michael Mukasey was nominated to be Attorney-General, some Democrats wanted him to acknowledge first that waterboarding is torture. He took the somewhat preposterous line that he couldn’t answer the question until he’d been confirmed. Convenient! Well, now it seems Russ Feingold hasn’t forgotten and is formally requesting a legal opinion from Mukasey.
If he finds the techniques used by the CIA to have been torture, which he said is illegal, then he will come under tremendous pressure to prosecute the interrogators and possibly even the administration officials who approved the illegal behavior. If he doesn’t conclude that they’re torture, he’ll be embracing a politically convenient and euphemistic definition of the law.
When you think about it, though, this isn’t a very hard choice to make. He’s going to embrace the politically convenient, euphemistic definition of the law. When Mukasey was up for the job, there was some sentiment that he should be confirmed because he’s a basically honest, ethical, competent guy. Realistically, though, there’s just no way a person in Mukasey’s position could do his job in an honest, ethical, and competent fashion. He’s not going to prosecute people for performing interrogation techniques the president authorized. And yet, those techniques are illegal. You need to either prosecute the interrogators or else (much better) immunize them for the purposes of prosecuting their superiors. But it’s not going to happen.
The nature of the job, now as well as at the time it was offered to Mukasey, is that carrying water for the criminal acts of current and former senior officials is a core responsibility. There isn’t — and wasn’t — any sense looking for an honest and ethical nominee because no honest and ethical person could possibly do the job. Mukasey may well have been a saint the day before he accepted the offer, but putting yourself in a senior position in the Justice Department these days is inherently a bargain with the devil.