Mukasey rejects Bybee memo, compares U.S. torture to Nazi tactics

Attorney General nominee Michael Mukasey’s confirmation hearings got underway this morning, and Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) explored Mukasey’s position on administration torture policies. His response was surprising.

Not only did Michael Mukasey repudiate the so-called 2002 “torture memo” signed by Office of Legal Counsel chief Jay Bybee — which appears to have survived in spirit, if not in letter — but he compared U.S. torture to the Holocaust.

Most significantly, Mukasey said that he is unaware of any inherent commander-in-chief authority to override legal restrictions on torture — a huge repudiation of Dick Cheney, David Addington and John Yoo’s perspective on broad constitutional powers possessed by the president in wartime — or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.

The Bybee memo is “worse than a sin, it’s a mistake,” Mukasey said. He referenced the photographs taken by U.S. troops who liberated the Nazi concentration camps in 1945 to document the “barbarism” the U.S. opposed. “They didn’t do that so that we could then duplicate it ourselves.” Beyond legal restrictions barring torture clearly, torture is “antithetical to everything this country stands for.”

Greg Sargent had the same reaction I did — weren’t Republicans apoplectic when Sen. Dick Durbin said something similar two years ago?

Specifically, Durbin, on the Senate floor, said, “If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.”

The reaction was overwhelming. One suspects the ensuing firestorm to Mukasey’s remarks will be a little less intense (which is to say, non-existent).

Indeed, this is going back a couple of years, so it’s probably worth taking a moment to consider just how far the right pushed this.

In June 2005, shortly after Durbin’s remarks, Karl Rove delivered a speech to the New York Conservative Party in which he said Durbin’s historical comparison was literally dangerous to the safety of Americans.

“Let me just put this in fairly simple terms: Al Jazeera now broadcasts the words of Senator Durbin to the Mideast, certainly putting our troops in greater danger. No more needs to be said about the motives of liberals.”

It was, even by Rove standards, breathtaking demagoguery. On the one hand, he said Durbin was encouraging terrorists. On the other, Rove said liberals in general, and Durbin specifically, intend to undermine the safety of U.S. troops.

In other words, according to the president’s top political aide, Durbin’s comparison was proof that liberals are literally treasonous. (The White House later said Rove was just “telling it like it is when it comes to the different approaches for winning the war on terrorism.”)

Durbin, shortly thereafter, made a tearful apology, but from time to time, you’ll still see conservatives reference his historical analogy (“The Senate Majority Leader says the war is ‘lost’; the Senate Minority Leader compares Americans to Nazis….”)

And yet, here we are, and the president’s nominee for Attorney General is making the same analogy. No one gasped, or expressed outrage, or demanded an apology. Mukasey’s comparison made sense, just as Durbin’s did.

It’s a reminder that the right, for all of its many faults, can manufacture an outrage out of nothing, and then pretend it never happened. It’s almost impressive, in an offensive kind of way.