Linsey Graham with BushAG nominee Michael Mukasey may have found the minimum statement he must make to hold Republican Senators on his upcoming confirmation vote, just as today’s New York Times lead article found a headline to obscure why Mukasey’s statement should automatically disqualify him.

All Mukasey needed to say on the question of whether waterboarding is torture is that he personally finds it “repugnant,” while dodging the legal question about its illegality until he’s safely through a confirmation vote he can consider the matter in the context and facts of an actual case. In essence, he’s saying, “trust me,” the unofficial slogan of the least trustworthy administration in memory, and Republicans are busy trying to sell it to the country.

The dodge was apparently enough for Senators Graham, McCain and Warner, who announced they were now prepared to vote for Mukasey’s confirmation, while noting they hoped the nominee would render an official opinion on the matter as soon as he was sworn in. They’re not asking Mukasey to promise to do so, mind you; just think about it. Please. They probably don’t need to ask; if confirmed, Mukasey will likely be forced to opine about what constitutes torture and a lot of other things he claims to find personally offensive.

Lindsey Graham explained why he “felt more comfortable” about Mukasey on PBS’ NewsHour by first noting that in nominating Mukasey, George Bush had “tried to bring us together” by choosing a “consensus candidate.” The man actually said that with a straight face. Asked whether he agreed, Senator Whitehouse suggested Mukasey’s legal views were on the “far edge of responsible legal opinion,” but those views had “created enormous mischief for our country.” But at least Mukasey seemed “a more reasoned man” than Alberto Gonzales.

Lindsey then tried to obscure why ducking the torture question was critical. Taking an argument from Mukasey’s letter and endorsed by Arlen Specter, Graham noted that Mukasey is “in a bind,” because if he expressed a legal opinion now, it might have legal consequences for people who have used or ordered waterboarding in the past. Well, yes, that’s true, but Specter/Graham didn’t explain how that would improve once Mukasey was sworn in and his “views” become official Justice Department positions rather than his personal opinions.

The whole point of answering the waterboarding question, after all, is to establish legal consequences for those who engage in illegal activities. An answer would let US personnel know, in no uncertain terms, that there is indeed legal liability for anyone who engages in or orders any form of torture and that whatever cover they thought they had before is gone. Given their argument, would Specter/Graham prefer that no opinion ever be issued?

The Times headline tells us the “Nominee’s Stand May Avoid Tangle of Torture Cases,” but further down we finally read that the “tangle” is the possible indictment of the President of the United States for war crimes:

Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.

So far, the key Democrats are not buying Mukasey’s dodge. Senator Whitehouse, appearing on NewsHour with Graham, argued we shouldn’t accept an AG who is ambiguous on the torture issue. In a Senate speech yesterday, Whitehouse declared that waterboarding is “unambiguously wrong,” arguing that US personnel needed a bright line to guide their conduct. His announcement against Mukasey was followed by Senator Durbin’s.

The Mukasey vote has thus become a proxy for impeachment, and we’re about to find out how far the US Senate is from upholding the Constitution. But as Kagro X keeps pointing out, we’ve set the ethical and legal bars so low for this Administration, its no longer worth pretending that having an Attorney General that Bush would nominate makes a difference.

Senator Leahy has scheduled a vote in the SJC for next Tuesday.

If you’re keeping score, the neocons now concede that waterboarding may “feel like torture,” but it doesn’t cause any lasting effect (unless, as Olbermann pointed out on Countdown, you actually cause the victim’s death). For more views from the sane part of the world see here and the many links at the end.

Photo: Graham with Bush; Willis Glassgow/AP

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