Mr. Mukasey, 66, a retired federal judge from New York, referred to the criminal liability issue several times in nearly 180 pages of written answers delivered to the Senate on Tuesday. He said that while he personally found waterboarding and similar interrogation methods “repugnant,” he could not call them illegal. One reason, he said, was to avoid any implication that intelligence officers and their bosses had broken the law.
“I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct,” Mr. Mukasey wrote, “with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.”
That’s a troubling way to interpret the law. We should be deciding whether actions are illegal based on whether or not they violate the law (national or international), not based on whether people we want to protect may be prosecuted.
And our leaders should be making responsible decisions that don’t put other people at risk for prosecution.
And while lots of people are jumping on the re-defining torture bus, it’s pretty clear that waterboarding has long been considered a torturous act. Just go read that post and try to argue otherwise. (Really, go. It’s a fantastic, must-read piece).