But didn’t Mukasey say today that “good reason” is enough to act illegally?

And at 12:34 P.M. EST today MR. FRATTO said “the Attorney General is testifying on Capitol Hill right now. He answered this question and he said that to make — it would be foolish to speculate on what the law would say about the application of a particular technique in a particular circumstance; that he would need — he needs the facts that surround those circumstances before he can make a legal determination. That’s what the Attorney General said.

http://www.usdoj.gov/olc/18usc23402340a2.htm

December 30, 2004 – “There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.”

DANIEL LEVIN
Acting Assistant Attorney General
Office of Legal Counsel

Most important, Judge Mukasey has demonstrated his fidelity to the rule of law, saying that if he believed the president were violating the law he would resign.

Should we reject Judge Mukasey, President Bush has said he would install an acting, caretaker attorney general who could serve for the rest of his term without the advice and consent of the Senate. To accept such an unaccountable attorney general, I believe, would be to surrender the department to the extreme ideology of Vice President Dick Cheney and his chief of staff, David Addington. All the work we did to pressure Attorney General Alberto Gonzales to resign would be undone in a moment…

Judge Mukasey’s refusal to state that waterboarding is illegal was unsatisfactory to me and many other members of the Senate Judiciary Committee. But Congress is now considering — and I hope we will soon pass — a law that would explicitly ban the use of waterboarding and other abusive interrogation techniques. And I am confident that Judge Mukasey would enforce that law.

On Friday, he personally made clear to me that if the law were in place, the president would have no legal authority to ignore it — not even under some theory of inherent authority granted by Article II of the Constitution, as Vice President Cheney might argue. Nor would the president be able to evade a clear pronouncement on the subject from the courts. Judge Mukasey also pledged to enforce such a law.

From a Bush nominee, this is no small commitment. In many aspects, Judge Mukasey reminds me of Jim Comey, a former deputy attorney general in the Bush administration who has been widely praised for his independence; he did not always agree with us on the issues, but was willing to fight administration officials when he thought they were wrong…

Even without the proposed law in place, Judge Mukasey would be more likely than a caretaker attorney general to find on his own that waterboarding and other techniques are illegal. Indeed, his written answers to our questions have demonstrated more openness to ending the practices we abhor than either of this president’s previous attorney general nominees have had…

To defeat him would be to abandon the hope of instituting the many reforms called for by our investigation. No one questions that Judge Mukasey would do much to remove the stench of politics from the Justice Department. I believe we should give him that chance.

Charles Schumer, a Democrat, is a senator from New York.

I swear, tons of peopel should fax him a copy of his editorial and demand that he print a retraction, an explanation for how he screwed this up, and a plan for how he’s going to fix this.