Here's What Michael Mukasky Should Have Been Asked About Torture

Michael Mukasey is an artful dodger.

Though members of the Senate Judiciary Committee grilled him yesterday on two of the most objectionable practices of the Bush administration -- torture and violation of FISA rules on domestic wiretapping -- the president's nominee for attorney general failed to produce a single straight answer.

Asked if the president had the constitutional power to authorize an illegal act, Mukasey said yes and no simultaneously:

"If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."

Doublespeak doesn't get much better than this. Though the president "doesn't stand above the law," it's "within" his authority to decide whether or not an illegal act is "within the law." And the law "starts with the Constitution."

Last time I checked, Mr. Mukasey, the Constitution authorizes the legislature to make laws and the Supreme Court to rule on their constitutionality. Under our constitution, the job of the president as our chief executive is faithfully to EXECUTE the law -- not to override it. Where does the constitution give him the power to do so?

We never got an answer to that question because it was never asked. But Senator Sheldon Whitehouse posed a question about the constitutionality of torture, and specifically of waterboarding. Here's the Q. and A.:

Whitehouse: "Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?"

Mukasey: "If it amounts to torture, it is not constitutional."

How artfully he dodges here! He won't be strapped to the board of specificity. He won't be made to say that any particular method of interrogation is torture. Having already refused (in response to an earlier question) to define torture, he speaks from the high chair of abstraction. Torture is not constitutional, he says, but he'll be damned if he'll tell you anything else about it. Its meaning is the president's business.

So here's the question Mukasey should have been asked:

"Mr. Mukasey, do you believe that any nation in the world has the right to subject American prisoners of war to waterboarding?"

I would love to have seen -- or more precisely heard -- what the artful dodger would have done with this question. He might have said, of course, essentially what he said in response to Whitehouse's question: "if it amounts to torture, no nation has the right to use it on American prisoners." But if he said that, here's the follow-up:

"Do you believe any nation in the world can justify the waterboarding of American prisoners by saying that it is not torture?"

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