"Attorney General-designate Michael Mukasey said Wednesday the president does not have the authority to use torture techniques against terrorism suspects. This stance was not taken by predecessor Alberto Gonzales and is considered key to the nominee's confirmation as the top U.S. law enforcement official.
Mukasey repudiated a 2002 Justice Department memo that said the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture."He also said there's no room for political interference with the running of the Justice Department. That's promising.
Update: Marty Lederman says:
"Just now, in response to repeated questions, he insisted that he did not know enough to say whether waterboarding, or any other technique, is torture, cruel treatment under Common Article 3, or otherwise unlawful. It's really remarkable how far we have fallen when a jurist of Judge Mukasey's caliber cannot answer such questions without hesitation."
That's not so promising. The more he talks about torture the less and less promising it looks. Brian Tamanaha says
"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain.
He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.
At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff.
Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture. For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."