Will the Bush administration get away with war crimes?

Friday, October 26, 2007

What Should Mukasey Do?

Marty Lederman
Believe it or not, Judge Mukasey's confirmation (or at least a positive vote in the Senate Judiciary Committee) just might depend on his acknowledgement that waterboarding is torture. (Or so says this AP story, anyway. I'll believe it when I see it.)

In any event, what's the big deal, right? Saying that waterboarding is torture is like conceding that the sun rises in the east. Should be a piece of cake -- and won't even require Mukasey to take a stand on the other forms of unlawful conduct (e.g., stress positions, threats, hypothermia, severe sleep and sensory deprivation) that President Bush reportedly has authorized. (By all accounts, waterboarding itself is a thing of the past.)

So why doesn't Mukasey just say so? -- after all, it'd be good press, great public relations, something our allies want to hear, and smooth sailing to confirmation.

As I've suggested, he doesn't want to say it because it would mean acknowledging that OLC and the President approved, and CIA operatives engaged in, war crimes. And Mukasey does not want the incoming AG to have said any such thing, for fear of exposing such folks to possible criminal culpability.

That fear, however, is unfounded. There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable; but in any event, there are significant institutional reasons why the prospect of prosecution approaches zero, even if it might have been unreasonable for the CIA to rely on particular OLC advice (such as that waterboarding is legal).)

So the proper course for Judge Mukasey here is really rather simple. He can do the following:

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{A Clarification: Yes, I do worry that if Mukasey were to take this advice, it would merely distract us from the real continuing concerns, which are the "enhanced" techniques that Bush has approved other than waterboarding. Indeed, I fear that a definitive statement by the incoming AG that waterboarding is torture, and cruel treatment, might be viewed as some as an implicit approval, or distinguishing, of the techniques that he doesn't mention. But the likelihood of anyone from the Bush Administration (other than the military) ever saying that those techniques are unlawful is less than the possibility that, say, the sun will rise in the West tomorrow. And, at the very least, an acknowledgement that waterboarding is cruel treatment and torture will necessarily put pressure on the OLC legal analysis that must be underlying the President's approval of those other techniques. And so it would havee some salutary practical effect, at least in the long run (i.e., in the next Administration).}