Nearly all the media, and definitely most of the Senate Judiciary Committee, overlooked that waterboarding was not the essential issue in the confirmation of Attorney General Michael Mukasey. The real reason he jeopardized his ascension was briefly revealed in his written answers to the committee's questions. Mukasey did not want "our own professional investigators in the field" to be concerned that "any conduct of theirs, past or present, based on authorizations by the Department of Justice, could place them in personal legal jeopardy."
Former and present CIA agents have been worried about being prosecuted if they are charged in the future with, for instance, violating the 1997 U.S. War Crimes Act that criminalizes specifically cited war crimes that this statute characterizes as "grave breaches" of Common Article 3 of the Geneva Conventions, including not only torture but other forms of "cruel or inhuman treatment."
From Department of Defense documents obtained by the American Civil Liberties Union through the Freedom of Information Act (as well as other sources, including a leaked report by the International Red Cross on treatment of detainees at Guantanamo Bay), it is clear that there have been systemic criminal "grave breaches" in the field, many of them authorized by the Defense and Justice departments and the president. Does this shock, as one of our laws puts it, the attorney general's conscience?
Those committing such war crimes have been immunized from prior acts by the Military Commissions Act of 2006, and the subsequent presidential executive order on interrogation practices specially immunized the CIA and permitted the continuation of the CIA's secret prisons, known around the world as "black sites."
These practices, though currently immunized according to the president's wishes, not only violate several of our statutes and international treaties we have signed, but emphatically extract from our rule of law its foundation: due process.
Despite the protestations Mukasey made on his commitment to our rule of law, he wrote in the Wall Street Journal, before being nominated, that "current institutions and statutes are not well-suited to even the limited task of supplementing what became after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
It is dismaying that a majority of the Senate Judiciary Committee and the Senate as a whole voted to confirm as our chief law enforcement officer a person who finds "our current institutions" inadequate in this indeterminate war against terrorists who have utter, homicidal contempt for those institutions.
Since Mukasey may well continue as attorney general if Rudy Giuliani becomes our next president, it would be wise to watch, during the remainder of George W. Bush's term, the extent to which our new attorney general considers certain sections of the Constitution, which he vows to protect, as being inadequate.
In a series of previous scrupulously documented articles in The New Yorker magazine including references to the International Red Cross report on Guantanamo practices "verging on torture" Jane Mayer has raised what have now become challenges to the new attorney general on what exceptions to our rule of law he finds necessary in order to combat what he accurately describes as "Islamic terrorism."
On National Public Radio, Mayer distilled what her continuing, unrebutted research has shown about the CIA's "enhanced interrogation techniques" authorized by the president. Apart from waterboarding, does Mukasey have any qualms, as he presides over the administration of American justice, about Mayer's and others' revelations of:
"a top-down, controlled ... regimented program of abuse that was signed off at the White House and then implemented at the CIA from the top levels all the way down ... They would put people naked for up to 40 days in cells where they were deprived of any kind of light. They would cut them off from any sense of what time it was ... anything that would give them a sense of where they were."
Well, Mukasey's predecessor, Alberto Gonzales, said that sections of the Geneva Conventions are not relevant after Sept. 11.
Also, just before Mukasey's confirmation hearing, The New York Times reported on two secret Justice Department memos in 2005, one of which declared that congressional legislation prohibiting cruel, inhuman or degrading treatment of detainees did not include the CIA's interrogation methods.
Now that he's in charge of the Justice Department, will Mukasey repudiate that rather breathtaking exculpation? And does he find the congressional and presidential immunization of committers of war crimes, not only by the CIA, as meeting his standards of American justice?