Reserving judgment on waterboarding

What happened

Attorney General Michael Mukasey was grilled on "waterboarding" Wednesday in his official debut before the Senate Judiciary Committee. Mukasey said that, as promised, he had looked into the legality of the controversial interrogation technique. He said that he would not “pass definitive judgment” on waterboarding—which makes detainees feel like they are drowning, and many view as torture—because the CIA doesn’t do it any more. (USA Today)

What the commentators said

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Mukasey showed that he is a step above his predecessor, Alberto Gonzales, said The New York Times in an editorial (free registration). “But that is a very low bar.” Mukasey didn’t share Gonzales’ tendency toward “frequent memory lapses” and “misstatements,” but he disappointingly “parroted the Bush administration’s deplorable line” on torture. He “frankly conceded” that waterboarding would “feel like” torture if done to him. How hard would it have been for him to say it is torture, and illegal, when done to others?

Mukasey said he’d look into it, and he did, said The Wall Street Journal in an editorial. But if Senate Democrats thought they could push him around “to score political points,” they just “discovered their error.” If Congress really wants to “end waterboarding forever,” it has the “power to ban it outright.” But that might have “political costs of its own.” So the best Democrats can muster is “grandstanding over an interrogation technique that the CIA doesn’t even practice anymore.”

Well, maybe not at the moment, said Dahlia Lithwick in Slate. But Mukasey isn’t going to tell the CIA it can’t waterboard in the future. If the “constitutional Dear John letter” he sent to the Senate to explain his views is any indication, “Mukasey’s legal opinions have a 30-second shelf life.” He won’t “opine” on the legality of past actions or of any possible future events. Apparently, in the “new Bush/Mukasey construction,” rules are better made up “in secret as you go along.”