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A one-eyed AG

Michael B. Mukasey, who once seemed headed to confirmation as attorney general by acclamation, may now be facing a narrower and more contentious vote. That’s the price the retired federal judge from New York will have to pay unless he reconsiders some evasive testimony about torture.

Mukasey remains infinitely preferable to Alberto R. Gonzales, the presidential crony he would succeed. At hearings before the Senate Judiciary Committee last week, he promised to depoliticize the Justice Department and said he would resign rather than acquiesce in illegal behavior. In an administration that too often has been blind to the requirements of the rule of law, even a one-eyed attorney general would be an improvement.

Still, we were disappointed that Mukasey hedged when asked whether the simulated drowning known as “water-boarding” violates domestic and international prohibitions on torture. Mukasey said that “it would be irresponsible of me to discuss particular techniques with which I am not familiar.”

As the 10 Democrats on the Judiciary Committee noted in a letter to the nominee, water-boarding “has been the subject of much public discussion.” What isn’t clear is whether the CIA reserves the right to resort to that appalling practice to elicit information, reliable or otherwise, from suspected terrorists.

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Some members of Congress believe that water-boarding is off the table; the Bush administration has been less explicit. It declines to describe what it calls “enhanced” interrogation techniques -- Mukasey calls them “coercive” techniques -- encouraging speculation that water-boarding, like sleep deprivation, extreme temperatures, shaking, slapping and placing prisoners in uncomfortable “stress” positions, will still be permitted.

It’s unrealistic to expect Mukasey to publicly repudiate the administration’s position that there are interrogation techniques short of torture that the CIA can employ without violating U.S. or international law or an executive order issued in July. But water-boarding, a feature of the Inquisition, isn’t a close call even if one defends such a dubious double standard -- a standard, incidentally, that Congress has allowed to persist by refusing to explicitly bar the CIA from engaging in this act.

Mukasey owes the Senate, and the country, an unambiguous commitment to upholding the Geneva Convention’s ban on “outrages upon personal dignity, in particular humiliating and degrading treatment.” The question to him is whether Americans -- in any service, for any reason -- should be allowed to engage in water-boarding. The only acceptable answer is no.


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