Bush is now on record
that he will not nominate any person to the position of Attorney General unless they agree that Bush is allowed to torture people. It is Judge Mukasey or nobody
. No one nominated by Bush will be allowed to admit the obvious, that waterboarding is torture
Scott Horton, who was initially
for Mukasey's nomination, is now troubled by this new "litmus test":
[A] new litmus test for its attorney general: he must be prepared to wink at torture publicly, and behind the scenes to issue opinions giving the authors of the program comfort.
There has been no shortage of litmus tests in the past: abortion, gay marriage, the flag amendment—whatever hot-button issue the G.O.P. cooks up for its next election campaign. But the torture litmus test is new, and it seems to be key for lawyers. It really is an exercise in Kool Aid drinking. If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything. Indeed, there is no question about it. Waterboarding is torture and has been understood to be torture in a formal sense for over a hundred years. Soldiers who used it were court-martialed, and the attempted defense of military necessity was smacked down by the Army’s Judge Advocate General in 1903. There is no shortage of other precedent. This is why Mukasey’s dodge on the issue—first a very primitive dodge, and then a more sophisticated one—is so troubling.
(emphasis added). That really is the key issue: Bush is completely invested in his illegal, despicable, torture regime, as well as numerous other travesties that his "legal counsel" have been justifying for him. Jack Balkin points out
The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney's terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.Update
Several Republican Senators, who are living in a fool's paradise, have pleaded with Judge Mukasey to declare waterboarding illegal after he becomes Attorney General and has time to study the matter thoroughly. But the Administration would be no happier with such an announcement after confirmation than before. One can be quite certain that enormous pressure will be brought to bear on Mukasey after he enters the Administration never to make that particular pronouncement.
Which places any Attorney General nominee in a difficult bind: The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.
Yay, torture! Democratic senators Schumer and Feinstein have announced that they will vote for Mukasey, making his approval by the Judiciary Committee and confirmation by the full Senate an almost certainty. Feinstein's rationale: "first and foremost, Michael Mukasey is not Alberto Gonzales." Talk about lowering the bar...