Though it failed to send his nomination the way of Robert Bork, attorney general nominee Michael Mukasey's evasiveness on the definition of torture has done something historic. It has made it unmistakably clear to mainstream observers that the president may be criminally liable for violating anti-torture laws. Criminal liability of this White House will have wider repercussions than Mr. Mukasey's confirmation. It will reverberate through his tenure as attorney general and beyond the end of the Bush administration.
We now know that the reason Mr. Mukasey refused to acknowledge that waterboarding meets the legal definition of torture, or at the very least cruel, degrading and inhuman treatment, clearly had nothing to do with not being briefed about the procedure. If he didn't know at the time of the Senate committee hearing, he certainly learned afterwards that the US had considered waterboarding criminal and prosecuted it for at least a century. The real reason, as mainstream news analysts now acknowledge, was that publicly admitting waterboarding is torture or cruel and inhuman would have put the president in jeopardy of criminal charges.
Still, holes remain in the legal barricades the Bush administration has tried to erect around itself. Even if immunity from prosecution under the War Crimes Act stands, it only applies through 2006, not for mistreatment of detainees after that. And the 1994 anti-torture law applies throughout.
As attorney general, Mr. Mukasey can try to plug these holes. He may shield President Bush and others from criminal liability; he may resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases, our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.
There's hope yet that Bush and his fellow malfeasors will someday answer for their crimes. They don't call it "the long arm of the law" for nothing, but I'm not sure it can reach into Paraguay.
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