Mukasey lowers the bar yet again

To get on the fast track to becoming attorney general, Michael Mukasey didn’t have to tell senators that holding a prisoner upside down and forcing water into his lungs is illegal.

Mukasey didn’t have to call it torture. All he had to say was that if it turned out that waterboarding IS illegal, he would enforce the law. This apparently settles Mukasey’s confirmation problem, but still leaves a question:

Is it more unsettling that the bar is now set so low, or that in this administration enforcing the law at all would be an improvement?

Following the slow-motion train wreck of Alberto Gonzales at the Justice Department, it seemed that Mukasey, a highly regarded federal judge, would be a relief all around.

But then he ran into a water hazard.

To repeated questions, Mukasey would not say that he thought waterboarding amounted to torture, although he did say he thought it was “repugnant.”

(The Bush administration, of course, doesn’t think it’s torture either, preferring the phrase “enhanced interrogation” – or maybe, “Texas tickling.”)

Mukasey said he’d also have to think some more about whether it is legal.

Twenty-one former military and intelligence officials signed a letter to the Senate this week asking that Mukasey be required to answer the questions.

“Otherwise,” they warned, “there is considerable risk of continued use of the officially sanctioned torture techniques that have corrupted our intelligence services, knocked our military off the high moral ground, severely damaged our country’s standing in the world and exposed U.S. military and intelligence people to similar treatment.”

Now, the American flag stands for a government that firmly rejects torture but is curious about how long its prisoners can hold their breath.

Still, on Tuesday two Democratic senators – Charles Schumer of New York and Dianne Feinstein of California – joined the committee’s Republicans to send Mukasey’s nomination to the Senate floor, where it’s likely to win narrow approval.

Schumer wrote in the New York Times that he was unhappy with Mukasey’s position on waterboarding but maybe someday Congress would explicitly ban it and that if it did, “I am confident that Judge Mukasey would enforce that law.”

That was enough for a majority of the committee, although as Sen. Ted Kennedy, D-Mass, pointed out, “Enforcing the law is the job of the attorney general. It’s a prerequisite, not a virtue.”

Actually, these days it seems to be a miracle.

Waterboarding is a curious topic on which to stump a candidate to be attorney general. In a CNN poll released Tuesday, 69 percent of Americans surveyed considered it torture; 58 percent said the government should not do it. (That leaves 11 percent who consider waterboarding torture but still support it.)

Even among some Republicans supporting Mukasey, the technique had its critics.

“The world is not short of people and countries who will waterboard you,” Sen. Lindsey Graham, R-S.C., told the nominee. “There is a shortage of people who believe in justice, not vengeance.”

But if we can just blur the labels, we can get away with anything.

Last week, former New York Mayor Rudy Giuliani, the leading GOP candidate for president – and personally very close to Mukasey – told Fox News, “Intensive questioning works. If I didn’t use intensive questioning, there would be a lot of Mafia guys running around New York right now, and crime would be a lot higher in New York than it is.”

In other words, what we’re doing in Guantanamo right now is just like what’s done in criminal cases in New York – although we all know that if a racketeering suspect in Manhattan had been held upside down and had water forced through his nostrils, there would have been a scream from a federal judge that even Rudy Giuliani would have heard.

But rather than say we’re torturing people, it’s easier to say that we’re concerned and thinking about it.

And as soon as someone says it’s illegal, the attorney general will stop it.