Water-boarding Not Torture Because the Government Did It?

The article “Nominee’s Stand May Avoid Tangle of Torture Cases” (New York Times, Nov. 1) seems to suggest that Mr. Mukasey’s reticence on the issue of water-boarding is prudent and reasonable. But the logic of the political explanations for the nominee’s position is actually deeply disturbing. MukaseyReduced to its essentials, it is this: “It would be bad for the President or his agents to be found to have engaged in criminal behavior, thus we will not define as criminal such actions that the President’s agents may have undertaken, or which he may have directed.” It would be no different, in terms of the form of argument, from saying “to the extent that the President’s agents may have decapitated American civilians, and that homicide is illegal, I am not prepared to say that decapitation is homicide”. It almost boils down to Richard Nixon’s infamous comment that if the President did it, it can’t be illegal. When the Attorney General will not even lay the case of possible executive wrongdoing before a court to decide, this country will be well on its way to sacrificing both the rule of law and the constitutional division of powers in the name of national security. (Submitted as a letter to the editor, New York Times)

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