International Law

Is Mukasey Protecting Bush Administration?

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Even before his nomination as the country’s next attorney general is confirmed, Michael Mukasey may already be protecting the Bush administration, some legal experts say.

By refusing the demands of a number of members of the Senate Judiciary Committee that he expressly declare waterboarding to be an illegal form of torture, Mukasey may be trying to protect CIA officers who used the interrogation technique on suspected terrorists and those who authorized it from possible lawsuits and prosecution, reports the New York Times. The former federal judge’s reluctance to speak out could potentially cost him the AG job—although a confirmation hearing is scheduled Tuesday, there is “deep uncertainty about the outcome at the committee level,” the newspaper says.

“Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey’s calculations as he parried tough questions from committee members this week,” reports the Times. And, the article adds, “Some legal experts suggested that responsibility could go all the way to President Bush if he had explicitly authorized waterboarding.”

Sen. Arlen Specter, R-Pa., the committee’s top Republican, attempted to support the nominee, saying at a hearing today that “an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened.”

But, because the Justice Department probably approved waterboarding in confidential legal opinions, as well as for other reasons, there are what the newspaper describes as “huge hurdles” to pursuing such prosecutions in the U.S., according to Robert Chesney of Wake Forest University School of Law.

Nonetheless, there is “a culture of concern about where Monday-morning quarterbacking could lead to,” Chesney tells the Times. If Mukasey declared waterboarding illegal, “it would make it politically more possible to go after interrogators in the future.” But “whether it would change the legal equities is far less clear.”

In a four-page letter, Mukasey describes waterboarding as “over the line” and “repugnant,” but says he doesn’t know if it is illegal, reports the Washington Post. He also notes that Congress banned the U.S. military, but not the CIA, from using the technique.

The Post also says that Mukasey’s support among Democrats on the committee is dwindling. However, the White House insists that he will still be confirmed.

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