The New Bush Administration Litmus Test...

...is waterboarding -- specifically, the willingness of any Bush administration nominee to be evasive about whether it's torture (h/t The Heretik):

Several days before his first meeting with the Senate Judiciary Committee, Michael Mukasey’s Justice Department handlers arranged a private meeting for him with a number of “movement conservatives.” Two different administration sources have described the meeting to me. During the meeting, Mukasey’s counterparts, largely figures associated with the Federalist Society, pushed him on two points in particular.

First, they wanted him to undertake that he would not appoint a special prosecutor to look into the U.S. attorneys scandal and related charges concerning political prosecutions. ...

And second, they pushed aggressively on the torture question. They wanted Mukasey to pledge that he would toe the Administration’s line on “the Program,” that he would continue to protect those who authored the program with the cloak of an Attorney General opinion keeping them safe from prosecution.
[...]
That meeting and the Judiciary Committee hearing that followed provide a basis for us to conclude that the Bush Administration has developed a new litmus test for its attorney general: he must be prepared to wink at torture publicly, and behind the scenes to issue opinions giving the authors of the program comfort.

Daniel Levin failed the test:

A senior Justice Department official, charged with reworking the administration's legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News.

Daniel Levin, then acting assistant attorney general, went to a military base near Washington and underwent the procedure to inform his analysis of different interrogation techniques.

After the experience, Levin told White House officials that even though he knew he wouldn't die, he found the experience terrifying and thought that it clearly simulated drowning.

Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use.

Levin had initially stopped short of calling waterboarding torture, but after he experienced it himself, he told the White House that he did consider it to be torture and thus illegal -- and was promptly fired:

Levin took over former Office of Legal Counsel Jack Goldsmith’s job when he resigned and immediately began reassessing the administration’s interrogation techniques. Levin released a new memo in Dec. 2004 that replaced the 2002 Bybee memo. Levin’s memo declared that “Torture is abhorrent” but also cautioned in a footnote that his memo was not declaring the administration’s previous opinions illegal. “The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo.”

ABC reported that after Levin personally experienced waterboarding, he told the White House that it could be considered torture[.]
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Levin was working on a second memo that would have imposed tighter controls on the use of interrogation techniques such as waterboarding. While working on that memo, ABC reported “Levin was forced out of the Justice Department when Alberto Gonzales became Attorney General.” [...]

According to sources interviewed by ABC's Jan Crawford Greenburg (see video below), "...Levin was seen as too independent by the Bush administration — not someone who could be counted on to endorse White House policies.” (Via Think Progress.)


The bottom line is, the Bushies have a dire need to cover their collective asses. Why? Because waterboarding IS torture, unarguably -- and they know it darn well:

There has been no shortage of litmus tests in the past: abortion, gay marriage, the flag amendment—whatever hot-button issue the G.O.P. cooks up for its next election campaign. But the torture litmus test is new, and it seems to be key for lawyers. It really is an exercise in Kool Aid drinking. If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything. Indeed, there is no question about it. Waterboarding is torture and has been understood to be torture in a formal sense for over a hundred years. Soldiers who used it were court-martialed, and the attempted defense of military necessity was smacked down by the Army’s Judge Advocate General in 1903. There is no shortage of other precedent. This is why Mukasey’s dodge on the issue—first a very primitive dodge, and then a more sophisticated one—is so troubling.

So why has torture emerged as a Bush Administration litmus test? My friend Jack Balkin nails this:

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just “a dunk in the water” in Vice President Cheney’s terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

And Jack summarizes the dilemma very accurately:

Which places any Attorney General nominee in a difficult bind: The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.

Then there is the issue of legal liability -- and according to Scott, that liability would fall directly on the highest administration officials:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Hence, the debate around Michael Mukasey has really ceased to be about Michael Mukasey and his qualifications to serve as attorney general. It has become a debate about the torture issue. And protecting the authors of a criminal scheme from their certain ultimate fate: prosecution.

And thanks to Dianne Feinstein and Chuck Schumer, those Bush administration officials will get the guy who's willing to take the bullet for them.

Publius has more on that:

As annoyed as I am, I actually feel for Schumer -- but just a tiny bit. He backed himself into a tough spot. Mukasey is his guy, and he apparently promised the White House (prior to the nomination) that Mukasey would sail through. He could, of course, argue that the “deal” had an implied clause -- “said agreement is contingent on said nominee not supporting Spanish Inquisition torture methods publicly in Senate hearings.” But still, it’s a tough spot on the microlevel (i.e., the personal day-to-day dealings with the White House).

Feinstein, though, is a different story. I suppose it’s political cover for her buddy, but that’s not a good excuse in light of the consequences (more on that below). She needs to hear about this.

But turning back to Schumer, the more troubling issue is that he let himself get backed into this corner at all. In fact, his excuse -- “this is the best we can hope for” -- completely vindicates the administration’s extreme tactics. Essentially, the administration’s lawbreaking and DOJ-politicization have been so extreme that a candidate who refuses to call waterboarding torture is transformed into a “compromise” nomination. After all, says Feinstein, “he’s no Alberto Gonzales.” Boy, that’s a ringing endorsement. And sound logic too. Here’s a warm plate of tuberculosis for ya. Say what you will, it ain’t the bubonic plague.

Given our low expectations and mangled baselines, refusing to call Spanish Inquisition-era torture “torture” is now something a “compromise” candidate can do and still get through a Democratically-controlled Senate committee. But that’s the point. The Bush administration -- and the GOP more generally -- goes long. They push hard so that yesterday’s “extreme” becomes tomorrow’s “compromise.” And in this case (like so many others), the tactics have proven successful.

What’s most troubling though is the consequences -- and the precedent that non-accountability sets. At times, I wish the Dems wouldn’t even fight if are 100% certain that they’re going to fold in the end. That’s because fighting half-heartedly and losing only encourages the GOP to embrace torture even more strongly. There are no consequences, so why not?