Chuck Schumer, explaining his decision yesterday to vote confirm Michael Mukasey as AG despite Mukasey's refusal to commit to banning waterboarding, said that "he came to his decision after winning assurances from Mukasey in a meeting Friday that if confirmed he would enforce laws Congress might pass to broadly ban waterboarding as torture."
This is getting some pretty scathing commentary. The problem: Doesn't Schumer essentially put the onus on Congress to specifically ban something that a lot of people believe is now and always has been illegal? And doesn't that mean that maybe it can continue if Congress doesn't pass a law specifically banning it -- which, by the way, President Bush could veto? And isn't the idea that Congress needs to specifically address different possible methods of interrogation a pretty dangerous one?
Blogger Andrew Sullvan: "Schumer's promise ... is insufficient. It presupposes that the torture techniques described are not already illegal, thus retroactively exonerating all those who authorized them."
Legal blogger Jack Balkin: "Who is the bigger fool, Judge Mukasey for making these representations or Senator Schumer for believing them?"