Mukasey Torture Testimony Weak

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Lawmakers questioned judge Michael Mukasey on his ideas this week in an effort to determine whether he should succeed Alberto Gonzales as attorney general. The weakest part of Mukasey's testimony was that concerning torture.

DANIEL SCHORR: It was pretty smooth sailing for Michael Mukasey in his confirmation hearing except on one point - torture.


NPR senior news analyst Daniel Schorr.

SCHORR: Democratic whip Dick Durbin pressed Mukasey on the issue and the nominee seemed unable to come up with a coherent answer to the question of where he stood on the issue of torture as a tool of interrogation. At one point, Mukasey said, incomprehensibly, that if it is torture as defined by the Constitution or defined by constitutional standards, it can't be authorized. Torture defined by the Constitution?

It seems to me that Mukasey's confusion reflects the tension in the administration over torture versus terror. President Bush has said this government doesn't torture people. But Mr. Bush has also said that rigorous questioning of a suspect has provided information that has helped to stop a terrorist attack.

The Bush administration seems unwilling or unable to face the issue squarely. So it makes public statements that are contradicted by secret memos. One such memo from the Justice Department in 2002 advised that torturing suspected al-Qaida members may be justified. Another said that laws and treaties that outlaw torture do not bind the president because of his constitutional authority to conduct military operations.

The solution that the Justice Department came up with was to define torture narrowly enough to permit almost any method of interrogation. A 2005 legal opinion said that such techniques as head slaps, freezing temperatures and waterboarding - that is simulated drowning - do not fall under the definition of torture. That permitted White House Press Secretary Dana Perino to say that - deadpan - U.S. policy is not to torture and we do not. The Congress did not include waterboarding as a permitted tactic in a law it passed on the treatment of detainees.

Under the circumstances, one can understand Mukasey's quandary. After all, how do you speak for an administration that publicly abhors torture and secretly uses it?

This is Daniel Schorr.

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