Why Mukasey doesn't want to come clean on waterboarding

Early in his confirmation hearing, Judge Michael Mukasey seemed to be sailing along on an incoming tide of goodwill and bonhomie, that sort of vaguely nauseating insider reach-around that the Senate, particularly senators like Joe Biden, love to indulge themselves in when they are feeling good about anointing another public servant as rightful heir to a governmental sinecure replete with hefty salary, lots of bennies, and of course heavy-duty stature. In other words, making the supplicant just like them. All of this is done in the hope the public will see the Judiciary Committee in a halcyon light of statesmanship and nonpartisan magnanimity. It is, in other words, to puke.

Then some tricky questions came up about America's new pastime, the routine torture of Arabs and Arabesque-types, like Afghanis, all of whom we can fairly lump together as "Arabs," because the Bush Administration does not strain itself to find distinctions without a difference. They're brown, Muslim and from the Third World. That's a sufficient taxonomy; let's not get anthropological about all this. A large cohort in the Bush Administration enjoys torturing Arabs. They have tortured many of them in many ways, and for a long time they thought they could do so with complete impunity. Arabs (all of whom we labeled "terrorists") are not actually people in Bush's species classification system; they are unlawful combatants, non-state actors, etc., or at least become so once they are detained by the U.S. and stuffed into Guantanamo or Bagram Air Base in Afghanistan or in a CIA black site in Poland or somewhere. At least, this was Bush S.O.P. until the disquieting case of Hamdan vs. Rumsfeld came along and ruled that Arabs were in fact people, that they were entitled to protection under the Geneva Conventions, including that nettlesome Common Article 3, and that you couldn't try them in Guantanamo any old way you wanted, but actually had to provide a modicum of due process. Imagine that: if this ultra-conservative Supreme Court thought Bush had pushed things too far, how bad was it?

The Hamdan case marked a kind of turning point in the Bush reign of barbarity. For the first time, it dawned on L'il George that his ass might be in a sling for ordering routine violations of international standards of human decency. He never thought it could come to that; they were only Arabs, for crying out loud. Thus, Bush had to add a second agenda item to the business plan for his presidency. The first, which was still in place, was to spend as much as Americans paid in taxes, and as much as he could borrow from abroad, on war, and specifically on funneling federal revenue to Halliburton, Blackwater, Boeing, Bechtel, United Technologies, Sikorsky, Bell Helicopter, Northrop Grumman, subsidiaries of the Carlyle Group and other insiders benefiting directly from the the security state. Compare the stock prices of these companies between 2002 and 2007 to the performance of the stock market in general. Mission Accomplished. But Bush now had to add a second to-do box, in some ways complicating the first. He had to guarantee he could leave office without the "Pinochet Perplex," meaning, a carefree retirement without prosecutions for violations of the Federal Anti-Torture Statute and the War Crimes Act. The Hamdan case screwed this up royally.

While he sat moping, either wishing he could drown his misery in five gallons of beer or actually doing so, Dick Cheney brought his trusted accomplices, David Addington and other members of the Pennsylvania Avenue Inquisition, to his rescue. True, all that waterboarding and torture violated the War Crimes Act and the Anti-Torture Statute as they read now. But laws can be amended. In fact, we've got a new twist, an innovative torque, as in Torquemada. We'll make what we did, which was illegal at the time, legal now. We'll take the Torture Memo of 2002 and smoosh it into federal law by redefining torture, and for good measure we'll write it up so that even if what we did, what you ordered, Mr. President, was a violation of the Geneva Conventions even as extended by our CYA redefinition, we'll say that's okay too, as long as "advice of counsel" made you think it was okay. And since the "advice of counsel" we're talking about is the advice given by the creepy, necrophiliac lawyers who wrote the Torture Memo in the first place, it's a closed loop. Huh?, Mr. Cheney said to W. Who loves ya, baby?

But, spluttered W, like a little boy caught in a horrible mess who's afraid to hope. Congress won't go along with something that stupid. Of course they will, said Darth. But you gotta hit the hustings and sell this sucker right now, because Congress changes in November, 2006. The American people are slowly awakening to the idea we're a bunch of self-serving, merciless assholes, and we're going to lose control. And you know what that could mean in 2009.

How? How to do it? Bush wanted to know. Cheney whispered in his ear. Now's the time to transfer Khalid Sheikh Mohammed to Gitmo. Which means we've got to have that Military Commissions Act presto pronto, because we have to try him. Now! Now! And we'll stick in the mother of all exoneration clauses, retroactive to the signing of the Declaration of Independence if we have to. So get to it!

Bush did. Congress, of course, had no problem with giving American officials a free pass on torture and inhumanity to man. To do otherwise would have been "soft on terror." And, you'll note, not a single trial of a detainee in Gitmo has proceeded since Bush's breathless exhortations to prompt passage of the MCA in September, 2006.
Funny, huh?

So when Mukasey faltered on that first day, the Bush team took him aside and explained how it was. We did a lot of hard work, they told him, to make a clean getaway. You ain't messing it up. If you go in there and declare unequivocally that waterboarding is torture, you screw up our artful re-writing of the War Crimes Act and the Anti-Torture Act, and, worst of all, you could undercut our "advice of counsel" defense on which we're counting for a blissful sojourn in retirement. And that, ol' Mike, just ain't gonna happen.