It was more of the same today as Attorney General Mukasey testified before the House Judiciary Committee. As he had before the Senate Judiciary Committee last week, Mr. Mukasey spent much of the four-hour hearing refusing to answer questions on just about everything. The answers he did give, however, provided even less comfort.
Mr. Mukasey informed committee members that he would absolutely not launch a criminal investigation into the CIA’s use of waterboarding – despite yesterday’s confirmation by the White House that the CIA had in fact used the technique on three individuals. Rather, he asserted, no investigation was necessary because waterboarding was legal at the time it was used, since it had been authorized by a controversial and secret opinion written by the Office of Legal Counsel. Responding to a stunned Rep. Bill Delahunt's (D-MA) questions on the subject, Mr. Mukasey stated that “[the DOJ] could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion… Justified reliance could not be the subject of a prosecution.” When asked whether he had reviewed the reasoning of the now-infamous opinion purporting to authorize waterboarding, Mr. Mukasey echoed last week's refrain, saying that waterboarding is not now authorized and thus does not require his attention or legal analysis.
Now that Mr. Mukasey has effectively resurrected the Nuremberg defense as a principle of law recognized by the Justice Department, we all have ample cause to feel even more troubled after the oversight hearings than we were when they began.