That is precisely the sort of cozy rationalization that Mr. Schumer and his colleagues have used so many times to back down from a confrontation with Mr. Bush. The truth is, Mr. Mukasey is already in the grip of that extreme ideology . If he were not, he could have answered the question about waterboarding.
Mr. Bush said Mr. Mukasey could not do so because it would reveal classified information about Central Intelligence Agency interrogation techniques. That is nonsense. Mr. Mukasey was not asked if CIA jailers have used waterboarding on prisoners, something he could be expected to know nothing about. He was simply asked if ,as a general matter, waterboarding is illegal.
It was not a difficult question. Waterboarding is specifically banned by the Army Field Manual, and it is plainly illegal under the federal Anti-Torture Act, federal assault statutes, the Detainee Treatment Act, the Convention against Torture and the Geneva Conventions. It is hard to see how any nominee worthy of the position of attorney general could fail to answer yes .
The real reason the White House would not permit Mr. Mukasey to answer was the risk to federal officials who carried out Mr. Bush s orders to abuse and torture prisoners after the 9/11 attacks: the tight answer could have exposed them to criminal sanctions.
The rationales that accompanied the vote in favor of Mr. Mukasey were not reassuring. The promise of a law banning waterboarding is no comfort. It is unnecessary, and even if it passes, Mr. Bush seems certain to veto it. In fact, it would play into the administration s hands by allowing it to argue that torture is not currently illegal.
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