Without quite having the courage to come right out and say so, AG Michael Mukasey was arguing to the Senate Judiciary Committee on Wednesday that torture is situational. Similarly his letter to the Committee on Tuesday stated:

"There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question."... "I understand that you and some other members of the committee may feel that I should go further in my review and answer questions concerning the legality of waterboarding under current law," he said. "But I do not think it would be responsible for me, as attorney general, to provide an answer." He added, "I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances."

So what circumstances would make an illegal act of waterboarding suddenly legal? Mukasey was not able to say because, by the most curious of coincidences, he did not wish to get into hypothetical details.

Oh, actually, he could after all ... at least in the case of one hypothetical. Here is his response to a question from a disgusted Sen. Kennedy, who asked the Attorney General whether waterboarding Michael Mukasey himself would be considered torture:

KENNEDY: In the issue, as you know, on the — waterboarding has become the worldwide symbol for America’s debate over the torture and became the centerpiece of your confirmation hearing, after you refused to take a position, whether it’s lawful. In fact, even though you claim to be opposed to torture, you refuse to say anything whatever on the crucial questions of what constitutes torture and who gets to decide the issue. It’s like saying that you’re opposed to stealing, but not quite sure whether bank robbery would qualify. So, the courts and military tribunals have consistently agreed that waterboarding is an unlawful act of torture, but you refuse to say so... So I won’t even bother to ask you whether waterboarding counts as torture under out laws because I know from your letter that we won’t get a straight answer, so let me ask you this: Would waterboarding be torture if it was done to you? MUKASEY: I would feel that it was. There are numerous — I remember studying Latin in school, and one of the people I studied was Cicero, and Cicero, when he made speeches, would list all of the things he was going to pass over without mentioning, and then he would pass over without mentioning them, and a lot of that is in your question. You say, I am going to pass by this and not ask you about it pass by that and not ask about it. There are numerous things I would differ with. You say waterboarding is obviously torture, and you use the example of taking something, bank robbery, obviously being stealing. That assumes the answer to the question — which is that waterboarding is in fact torture just the same way bank robbery is in fact stealing. I think there are numerous other things I would argue with. I simply point out that this is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed, and differed in this chamber, during the debate on the Military Commissions Act, when some people thought it was unnecessary, when some people thought that it obviously barred waterboarding, other people thought it was so broadly worded that it would allow anything, and there were expressions on both sides. I should not go into, because of the office that I have, the detailed way in which the department would apply general language to a particular situation, notably when I’m presented only with a question that tells me only part of what I would be asked to rule on if I were ever asked to rule on it.

The answer that waterboarding him personally would constitute torture puts Mukasey in line with DNI McConnell.

Funny though that in his answer to Kennedy, Mukasey doesn't need to know any further circumstances to make that decision. He's been claiming that torture is situational; certain circumstances make waterboarding legal. But with regard to himself, he doesn't hesitate to issue an opinion without even the slightest quibbling about possible circumstances.

That seems to imply that waterboarding Michael Mukasey would be torture under any conceivable circumstances - because he's innocent of wrongdoing. And yet none of the people who've been tortured by the CIA under George Bush's orders had been convicted of anything. The presumption of innocence is the very foundation of our law. Neither George Bush nor Michael Mukasey is in any position to rule that none of the prisoners might conceivably be innocent. They haven't attempted to assert that power. These and other prisoners of course remain innocent before the law until found guilty of some crime.

Essentially Michael Mukasey is declaring: No, you may torture other innocent people but never me. He is what passes these days for America's lawyer.