By Dan Froomkin
Special to washingtonpost.com
Tuesday, October 30, 2007; 12:56 PM

The stench of torture that permeates the White House has spread to Attorney General-designate Michael Mukasey, putting what had been seen as a surefire nomination at risk and reigniting a momentous ethical debate.

By refusing to acknowledge at his confirmation hearing that waterboarding is torture, Mukasey appeared to throw his lot in with those who embrace an authoritarian strain of moral relativism, one that excuses abhorrent and illegal policies as long as the president declares they're in the national interest.

When longtime Bush loyalist Alberto Gonzales was nominated to succeed John Ashcroft as attorney general, critics expressed what turned out to be eminently justified concern that he would never buck the White House. By all accounts, Mukasey, a federal judge, is much more independent than Gonzales. As I wrote in my Sept. 18 column, Bush evidently realized that the Democratic Congress wouldn't let him install another complete lickspittle into the nation's top law-enforcement post.

Nevertheless, Bush and Vice President Cheney desperately need someone in that job who won't undermine the most radical of their legal positions: Those regarding executive power and the treatment of terrorism suspects. And they seem to have found such a person in Mukasey.

Scott Shane writes in the New York Times: "Six years after the Bush administration embraced harsh physical tactics for interrogating terrorism suspects, and two years after it reportedly dropped the most extreme of those techniques, the taint of torture clings to American counterterrorism efforts.

"The administration has a standard answer to queries about its interrogation practices: 1) We do not torture, and 2) we will not say what we do, for fear of tipping off future prisoners. In effect, officials want Al Qaeda to believe that the United States does torture, while convincing the rest of the world that it does not.

"But that contradictory catechism is not holding up well under the battering that American interrogation policies have received from human rights organizations, European allies and increasingly skeptical members of Congress....

"President Bush has repeatedly defended what the administration calls 'enhanced' interrogation methods, saying they have produced invaluable information on Al Qaeda. But the administration's strategy has exacted an extraordinary political cost.

"The nomination of Michael B. Mukasey as attorney general, once expected to sail through the Senate, has run into trouble as a result of his equivocation about waterboarding, or simulated drowning. Mr. Mukasey has refused to characterize the technique as torture, which would put him at odds with secret Justice Department legal opinions and could put intelligence officers in legal jeopardy."

Massimo Calabresi writes for Time: "George W. Bush has always wielded moral clarity as a weapon, beating Democrats by declaring his high purpose and principled resolve. But in recent months, as critics have shined new light on domestic spying and harsh interrogation techniques in the morally ambiguous world of counter-terrorism, Bush has had to retreat to gray-area defenses, using tailored definitions and legalisms to dodge questioners. And now, as Democrats raise the pressure on embattled Attorney General nominee Michael Mukasey to state his opinion on whether or not waterboarding constitutes torture, it is the president's opponents who are using moral clarity against him."

Calabresi writes that if Mukasey "refuses to declare waterboarding expressly illegal, he looks likely to be rejected by the Judiciary committee. On the other hand, if he does declare it illegal, he may be rendering a legal judgment on everyone who authorized waterboarding or used it in interrogation. 'They are putting him in an almost untenable position on this,' says White House spokesman Tony Fratto. The White House expects Mukasey's response will be sent to the committee Tuesday or Wednesday, and Fratto says, 'He'll respond in his usual manner, which is thoughtful and thorough, but there are certain things that he will not be able to comment on.'"

Calabresi also offers a peek behind the scenes, where -- surprise! -- Vice President Cheney's office is heavily involved: "Harold Kim, a former Specter staffer who works in the White House Counsel's office, has been negotiating with Judiciary Committee Democrats, trying to find language they can live with. But attempts to compromise with Congress have met resistance from Cheney's office, and when it comes to interrogation techniques, the Vice President and his chief of staff, David Addington, have notoriously pushed for Presidential authority to go unchecked by the legislative branch."

Cheney's position on waterboarding doesn't take a lot of guesswork. Here he is in an October 24, 2006, interview with right-wing radio host Scott Hennen:

Hennen: "Would you agree a dunk in water is a no-brainer if it can save lives?"

Cheney: "It's a no-brainer for me."

The Washington Post editorial board writes: "It's a sad day in America when the nominee for attorney general cannot flatly declare that waterboarding is unconstitutional. The interrogation technique simulates drowning and can cause excruciating mental and physical pain; it has been prosecuted in U.S. courts since the late 1800s and was regarded by every U.S. administration before this one as torture. . . .

"The fault for this evasion lies as much, if not more, with President Bush and Congress as it does with Mr. Mukasey. Mr. Bush authorized waterboarding in the past, most notably against al-Qaeda leader Khalid Sheikh Mohammed. If Mr. Mukasey now condemns the interrogation method as unconstitutional, he would probably be in conflict with Justice Department memoranda that implicitly endorse such techniques and that have been used by CIA interrogators and others to cloak their actions in legal legitimacy. The president could also be legally implicated for approving the method."

The Milwaukee Journal Sentinel editorial board writes: "Waterboarding is torture. If he cannot unambiguously define it as such, he should not be confirmed. . . .

"Mukasey, in declining to answer whether the technique that simulates drowning in its victims is constitutional, told the Senate Judiciary Committee that he is unfamiliar with it. This is implausible. But he stuck to the story even when the method was explained to him.

"'If it amounts to torture, it is not constitutional,' he said. But this is very much like the president's own unsatisfactory answer, which, in a nutshell, is that this country doesn't torture but that he gets to define what that is. . . .

"The president should have leeway to appoint cabinet members who share his views. But like-mindedness in an appointee on the matter of torture is no virtue. It is difficult to imagine how such a person, taking such an expedient view in the nomination process, could be independent enough to stand up to the president if need be."

Joan Walsh writes for Salon: " It's worth paying attention to what Mukasey said, exactly, during his testimony (thanks to Paul Kiel at TPM for highlighting this):

"'I don't think that I can responsibly talk about any technique here because -- (pause) -- of the very -- I'm not going to discuss and I should not -- I'm sorry I can't discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that.'"

"So it seems Mukasey refused to call any particular technique torture, or to say whether it was 'unconstitutional,' because he believes someone out there may be using these controversial techniques right now, under orders from above, and he doesn't want to get them in trouble just to be 'congenial.'"

Law professor Marty Lederman blogs: "There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment."

But, he writes "Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise."

Here are all the written questions submitted to Mukasey by various Senate Judiciary Committee members since his confirmation hearing. Here is Mukasey's response to the first letter from Committee Chairman Patrick Leahy (D-Vt.), about presidential power.

The USA Today editorial board writes that Mukasey's views on torture are important but "of far greater concern, is what Mukasey said about the limits of presidential power. While the president cannot act illegally, he said, 'illegal' is a fuzzy concept when it comes to the president.

"The nominee asserted that the president has broad and ill-defined powers to ignore a law when he believes his constitutional authority to defend the nation empowers him to do so. Senate Judiciary Chairman Patrick Leahy, D-Vt., described this as 'a loophole big enough to drive a truck through.' . . .

"[B]efore the Senate confirms Mukasey, it should be confident that he stands unequivocally for the principle that no American is above the law, not even the president."

Former White House associate counsel Bradford A. Berenson writes in a USA Today with an opposing view: "To say, as Judge Mukasey has, that the president has certain inherent powers over military and intelligence matters that Congress might not be able to regulate or take away is nothing more than an acknowledgment of constitutional reality. Nor should he be faulted for refusing to render snap legal judgments about classified interrogation methods without access to either the facts or the existing legal analysis of the department he has been nominated to lead."

Adam Cohen writes in a New York Times opinion piece: "President Bush's nominee for attorney general, Michael Mukasey, was asked an important question about Congress's power at his confirmation hearing. If witnesses claim executive privilege and refuse to respond to Congressional subpoenas in the United States attorneys scandal -- as Karl Rove and Harriet Miers have done -- and Congress holds them in contempt, would his Justice Department refer the matter to a grand jury for criminal prosecution, as federal law requires?

"Mr. Mukasey suggested the answer would be no. That was hardly his only slap-down of Congress. He made the startling claim that a president can defy laws if he or she is acting within the authority 'to defend the country.' That is a mighty large exception to the rule that Congress's laws are supreme.

"The founders wanted the 'people's branch' to be strong, but the Bush administration has usurped a frightening number of Congress's powers -- with very little resistance. The question is whether members of Congress of both parties will do anything about it."

Thomas Fitzgerald writes in the Philadelphia Inquirer: "Trailing his dismal approval rating, President Bush swept into the Philadelphia suburbs yesterday, to the consternation of some Republicans facing tight county elections next week.

"Bush was in Bryn Mawr to raise money for the state party's 2008 campaign fund, but some regional GOP leaders fretted about the timing, since Bush is widely unpopular in Southeastern Pennsylvania and Democrats have sought to associate the party's county candidates with the White House.

"'I understand the need to take advantage of the president, but it's just bad timing for me,' said Montgomery County Commissioner Jim Matthews, a Republican running for reelection whom Democrats have targeted with mailings that picture him with Bush. 'Maybe it would have been better if he was in Delaware or Chester,' Matthews said. . . .

"'It was like the Democrats scripted it,' one top suburban Republican said of the timing, speaking on condition of anonymity out of deference to the White House."

The Associated Press reports that in Bryn Mawr, and then later in the day at a Cincinnati fundraiser, the president "was under wraps the whole time. Bush went first to one large home in a well-manicured neighborhood and then another, for gripping-and-grinning with wealthy GOP supporters out of sight of the media and without a single public utterance. The media that normally sticks close by the president, even when he is in closed events, was kept at buildings far from the fundraisers."

Spencer S. Hsu writes in The Washington Post: "The Federal Emergency Management Agency's director of external communications was denied a post as senior spokesman for Director of National Intelligence Mike McConnell yesterday, becoming the highest-ranking casualty of a fake news conference staged by FEMA last week to publicize its response to California's devastating wildfires.

"The flap is not the first time FEMA or its parent Department of Homeland Security has been on the wrong end of a public relations move that backfired. Rather, it fits a pattern in which domestic security officials have mismanaged the public presentation of their efforts, whether those efforts are going well or poorly.

"Public relations is an obsession of senior department leaders, who say that public safety and counterterrorism efforts depend on their credibility. But DHS has repeatedly stumbled, most devastatingly when its leaders' reassuring words clashed with chaotic television images of New Orleans in the aftermath of Hurricane Katrina in August 2005."

The Washington Post editorial board writes: "Since its disgraceful performance during Hurricane Katrina and the shake-up that followed, the folks at the Federal Emergency Management Agency have adopted a mantra: We are a new FEMA. But the old, bumbling agency capable of breathtaking lapses in judgment reemerged last week during a 'press conference' to update the 'media' on FEMA's response to the wildfires in Southern California."

Stephen Labaton writes in the New York Times: "The nation's top official for consumer product safety has asked Congress in recent days to reject legislation intended to strengthen the agency, which polices thousands of consumer goods, from toys to tools...

"The measure is an effort to buttress an agency that has been under siege because of a raft of tainted and dangerous products manufactured both domestically and abroad. In the last two months alone, more than 13 million toys have been recalled after tests indicated lead levels that sometimes reached almost 200 times the safety limit."

Labaton notes that the opposition from Nancy A. Nord, the acting chairwoman of the Consumer Product Safety Commission, "is consistent with the broadly deregulatory approach of the Bush administration over the last seven years."

The Associated Press reports on Bush's picks for this year's Medal of Freedom. They're considerably less controversial than in 2004, when Bush presented the medal to supposed heroes of the Iraq war: Former CIA Director George Tenet, former U.S. Proconsul in Iraq Paul Bremer, and retired Army Gen. Tommy Franks.

Possibly the biggest poke in the eye to administration critics this time around: The medal going to Henry Hyde, an Illinois Republican who served for 32 years in the House, where he was known for his battles against abortion rights and his leading role in the impeachment of President Clinton.

Richard Cohen writes in his Washington Post opinion column: "When George W. Bush surveys his presidency, he will see two wars commenced and none concluded, Osama bin Laden still on the loose, American prestige at record lows throughout the world, a military both broken and abused, and a country that in large part thinks its government is a liar."

Expanding on that latter point, Cohen writes that "years of Bush exaggerations, of Cheney lies, of dots that somehow failed to connect and intelligence that was false or misleading, of wars that go nowhere, of overblown and juvenile rhetoric -- 'Bring 'em on' -- have made cynics of us all. That is the new realism."

As a result, "a good piece of America thinks that Bush is its prime enemy -- and Iran just another bee in his bonnet. This is the lamentable legacy of George W. Bush -- an abuse of trust that has weakened the country he swore to protect."

Timothy Noah writes in Slate: "The President Bush portrayed in Michael Abramowitz's Oct. 29 Washington Post story 'U.S. Promises on Darfur Don't Match Actions' is almost unrecognizable. According to Abramowitz, Bush is so absorbed by the details of the humanitarian crisis in the Darfur region of Sudan, which he's repeatedly labeled 'genocide,' that some in the White House refer to the president as the 'Sudan desk officer.' . . . Yet nothing seems to happen.

"This is quite different from the President Bush we've come to know in the context of Iraq -- blustery, messianic, quick on the trigger, and unafraid to express boredom with the fine print."

Noah thinks he knows why Bush isn't actually taking action on Darfur: "I'll wager that President Bush hasn't done anything about Darfur not because he has acquired humility about the projection of American power, and not because his sissy White House aides won't give him a plan with cojones, and not because the Darfur portfolio keeps passing from one desk to another, and not because the Pentagon and the State Department are dragging their feet. Rather, I would guess that Bush hasn't done anything about Darfur because the vice president won't let him."

Joe Gould and Dave Goldiner write in the New York Daily News: "Nobody got shot, but Vice President Cheney still fired up controversy Monday when he went hunting at a private club that hangs the Confederate flag.

"A Daily News photographer captured the 3-by-5 foot Dixie flag affixed to a door in the garage of the Clove Valley Gun and Rod Club in upstate Union Vale, N.Y.

"'It's appalling for the VP to be at a private club displaying the flag of lynching, hate and murder,' said the Rev. Al Sharpton. 'It's the epitome of an insult.' . . .

"Club officials threatened a reporter with arrest when he sought comment. . . .

"Cheney spokeswoman Lee Anne McBride said Cheney did not know anything about the controversy.

"'The VP did not see the flag and neither did anyone on staff,' said McBride."

Gould and Goldiner also point out that what Cheney was doing isn't really hunting. It's shooting: "Farm-bred pheasants were released on the preserve 24 hours before Cheney arrived, making them easy targets for the hunting party.

"'The way they hunt, I'm not fond of,' said Linda Smith, 52, who runs a local preschool. 'It's not what I would call a real sportsmanlike activity.'"

Fernanda Santos writes in the New York Times about the hunting club, where "70-odd members are said to pay as much as $100,000 a year for the privilege of hunting ducks and pheasants on 4,000 acres of land. . . .

"'We're sort of used to the high rollers coming by,' said Dan Roth, 69, a member of the Mid-County Rod and Gun Club, a more modest establishment on the east side of Clove Mountain, where the membership dues average about $2,000 a year.

"'Dick Cheney gets people talking, though,' Mr. Roth said. 'People wonder if he's going to shoot something. Or someone.' . . .

"A White House spokeswoman said she could not provide any details about Mr. Cheney's day," Santos writes, adding: "The ambulance that accompanied the vice president's motorcade when he left the gun club for a nearby airport was carrying no passengers -- an encouraging sign."

Steve Holland writes for Reuters with some nuggets from the secret interviews with President Gerald Ford that Thomas DeFrank is divulging in his new book. Among them: "DeFrank said Ford thought it might have been best if President George W. Bush dumped Dick Cheney as his vice presidential running mate in 2004 because of his muscular views on the Iraq war.

"'Dick has not been the asset I expected on the ticket,' he said of his one-time White House chief of staff."

Jeff Bercovici writes for Portfolio.com about former White House press secretary Tony Snow's speech at the American Magazine Conference.

Strangely enough, I totally agree with Snow's media criticism here. Said Snow: "The newspapers have to realize that they are a niche market and the one thing they can do better than anyone else is analysis. As a guy who spent the majority of his career in print media and loves writing, it scares me that newspapers are in the state they're in. . . .

"There are structural problems right now that make it very difficult to cover the White House the way it should be covered. . . . People are trying to keep up with the electronic media. So what happens is you end up thinking, what can I do quickly and what can I do that people are going to watch? . . . If you're doing it in real time, you can get real stupid."

But here's where Snow and I part ways: "You don't see it but there's a process where everything gets discussed, and there are some raging arguments," Snow said. "It's not the case that something is always handed in a neat little bundle to the leader of the free world. He's gotta make some choices. . . . When people look back at this White House, they're gonna find it's one that had a lot of intellectual vigor."

Via U.S. News, David Letterman: "FEMA faked a press conference and earlier today President Bush strongly condemned it at his own fake press conference."

And Jay Leno: "Vice President Dick Cheney went out hunting again today. God, I didn't even know it was lawyer season. . . . No, actually, Cheney said he was in upstate New York to hunt peasants. Pheasants, I'm sorry."

Mike Luckovich and Pat Oliphant on Cheney's drumbeat; Bob Gorrell on Bush's change in policy; Steve Sack on Cheney's change in pumpkins.

Join me tomorrow for a special Halloween edition of my Live Online discussion at 1 p.m. ET. And Valerie Plame Wilson is on today at 1.