Attorney generalized

October 19, 2007

It was good to see the Democratic members of the Senate Judiciary Committee focus a little yesterday on the equivocations of Michael B. Mukasey over the issue of torture - equivocations that the senators had seemed intentionally not to notice a day earlier.

Mr. Mukasey is the nominee for attorney general, and because he is so clearly a better man for the job than Alberto R. Gonzales was, he is virtually assured of Senate confirmation. But his semantic dodging on torture - and on warrantless wiretapping - was a disappointment.

His heart would appear to be in the right place, and that's more than could have been said about Mr. Gonzales. He began his two days of testimony with an absolute denunciation of torture and a ringing pledge of allegiance to the Constitution. He staunchly disavowed a Justice Department memo from 2002 that gave a green light to "enhanced interrogation" - but that memo, it must be said, was superseded in 2004, and we listened carefully to see if he would disavow two subsequent opinions that replaced it, and that are still in force. He did not.

Yesterday, senators finally pressed him directly on that question, and it turns out that while Mr. Mukasey denounces torture, he has rather lawyerly ideas about how torture might be defined. He said he doesn't know whether waterboarding is torture; that strikes us as a particularly revealing statement. Any reasonable person would recognize it for what it is.

Similarly, on the Constitution, with Mr. Mukasey it all seems to depend on how he cares to interpret it. Congress can place limits on warrantless wiretapping, but Mr. Mukasey testified that the Constitution gives the president room to wriggle around those limits if he so chooses - around the law, in other words. This is troubling, at the very least.

Mr. Mukasey does not come across as a reckless person, and we expect that he will probably adhere fairly closely to law and precedent once he takes his post. We hope to see him place a respected and independent person as head of the Office of Legal Counsel, where many of the department's worst impulses have originated. Doing so would send a very strong - and positive - signal about the rule of law in Washington.

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