Mukasey punts on torture

Michael Mukasey, President Bush’s nominee to be the next attorney general, disappointed Democrats on Tuesday with his much-anticipated statement  discussing the legality of  waterboarding, an interrogation technique that simulates drowning.

{mosads}His four-page legalistic discussion, responding to a request from Congress, did not give Democrats the succinct and unequivocal statement that waterboarding is torture and therefore illegal.

As a result, incipient Democratic opposition to Mukasey’s nomination as successor to Attorney General Alberto Gonzales appears likely to escalate.

Judiciary Committee Chairman Patrick Leahy (D-Vt.), who has jurisdiction over the nomination, said that Mukasey’s letter did not satisfy his concerns.

“Based on an initial review of his response to the letter, I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States,” said Leahy.
Sen. Joseph Biden (D-Del.) pounced on Mukasey’s statement and vowed to oppose his nomination, saying,  “I am disappointed by Judge Mukasey’s response.”

Biden, who is running for president, added, “He was asked a direct question on the specifics of waterboarding and he refused to unequivocally state that this practice is torture.  For this reason, I shall oppose his nomination to be the United States attorney general.”

Mukasey sent his letter to Congress Tuesday in response to a request signed by all 10 Democrats on the Judiciary panel that he give them a direct and clear answer to the question of whether water boarding is torture.

A senior Senate Democrat told The Hill Tuesday that Mukasey’s nomination had no chance of passing the Judiciary Committee if he declined to classify the interrogation technique as torture, thereby perhaps creating a loophole and allowing future waterboarding of captive terrorist suspects.

Intelligence officials have admitted that they have used waterboarding as a way of extracting information from captured members of al Qaeda, the Islamist terrorist organization headed by Osama bin Laden, which was responsible for the attacks in New York and Washington on Sept. 11, 2001.

The Bush administration has battled to have as much freedom as possible in its treatment of terrorist detainees and has opposed efforts to outlaw waterboarding.

The conflict between Bush and Congress put Mukasey in a bind. A refusal by him to condemn the practice as torture, makes greater Democratic opposition to his nomination inevitable. But if he were to have given Democrats the unambiguous statement they sought, he would have stripped the U.S. intelligence agents of an interrogation technique that the Bush administration says is necessary in the war on terrorism.

Mukasey informed senators that his legal opinion on waterboarding would depend on the facts and circumstances of the program and reminded them that he had not been briefed on the government’s interrogation program and techniques.

The nominee wrote that it would be irresponsible “to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances.”

He wrote that as attorney general, he would “review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law,” and he added that if he found an interrogation practice to violate the law he would immediately advise President Bush of his finding.

Senators have also submitted to Mukasey a list of written questions to augment his testimony earlier this month before the Judiciary panel. The extra questions touch on issues such as terrorist interrogation, terrorist surveillance, the firings of U.S. attorneys, civil rights, and law enforcement.

Leahy said he would await Mukasey’s answers to these questions and then consult Judiciary Committee Ranking Republican Arlen Specter (Pa.) and other committee members before scheduling a vote.

The nomination of Mukasey was precipitated by the resignation of Gonzales, who had become embroiled in scandal relating to his attitude toward the legality of coercive interrogation techniques, the firing of U.S. attorneys, and the putative politicization of the Justice Department.

Perhaps anticipating Mukasey’s argument that he could not opine on U.S. interrogation techniques without detailed knowledge of them, Leahy repeated his demand that the White House declassify one of four documents discussing the administration’s interrogation policies and their legal basis. 

Leahy asked for White House officials to “promptly fulfill my longstanding requests for documents relating to this administration’s policies, both past and present, on torture.”

Republicans are also voicing concern about Mukasey’s stance on waterboarding.

Manu Raju contributed to this report.