Democrats grill Mukasey

Attorney General Michael Mukasey said Wednesday he believed the Justice Department had previously instituted a policy that would give President Bush the last word on waterboarding.

Mukasey acknowledged that the president is part of a three-step approval process on harsh interrogation techniques, speaking during a tense hearing before the Senate Judiciary Committee. He also outlined the process in a letter to the panel’s chairman, Patrick Leahy (D-Vt.), released Tuesday night.

{mosads}Mukasey stopped short of saying Bush actually gave the call on the controversial practice. But the disclosure drew the attention of Democrats and could be significant because the Bush administration had previously acknowledged that the simulated drowning technique was used on a handful of people soon after the Sept. 11, 2001, attacks. If the president gave his endorsement to waterboarding, he may have authorized a practice in violation of anti-torture laws, Democrats say.

Sen. Dianne Feinstein (Calif.), one of six Democrats to vote to confirm Mukasey last fall, was surprised to learn about the president’s potential role in approving waterboarding. She said this was the first time such a “defined process” had been disclosed. She pressed Mukasey to answer whether the process had been in effect previously.

“I believe this has always been the case,” Mukasey said. “I mean, I’m not — I should take a step back. I’m not authorized to say what happened in the past, but I wasn’t told — I was told [the process] wasn’t news.”

His testimony Wednesday marked the first time Mukasey appeared before the panel since his 2007 confirmation hearings. Once again, Mukasey refrained from answering direct questions on waterboarding, leaving Democrats frustrated.

Mukasey’s vague answers on waterboarding last fall nearly derailed his nomination, with the Senate ultimately confirming him by a 53-40 vote — a narrower margin than that of his controversial predecessor, Alberto Gonzales.

On Wednesday, Feinstein pressed Mukasey further. She said “it is widely alleged” that at least three people had been waterboarded in the past.{mospagebreak}

“My question is, did the president approve that?” Feinstein asked.

“I can’t speak to whether people were in fact waterboarded or whether the president approved it,” Mukasey said. “I can’t do it because I’m not authorized to discuss it.”

{mosads}Mukasey said he was not authorized to talk about past practices, declining to say whether waterboarding was one of them or whether Bush had any involvement. He insisted that the technique is not part of the current CIA program and would not comment on its legality since he said he would be providing a hypothetical legal analysis.

“Given that waterboarding is not part of the current program and may never be added to the current program, I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality,” Mukasey said.

“There are some circumstances where current law would appear clearly to prohibit waterboarding’s use,” Mukasey said.

“But other circumstances would present a far closer question.”

That answer hardly satisfied committee Democrats, who have been sharply critical of Mukasey since he declined to state explicitly whether he believed waterboarding was torture during his confirmation hearings last October.

Republicans defended Mukasey and said Democrats are targeting a practice no longer in use in order to score political points.

“I think it’s been an embarrassment to our nation from a lot of these hearings when we’ve suggested wide-scale abuse that is not true,” said Sen. Jeff Sessions (R-Ala.).

In addition to the torture issue, Mukasey faced tough questions from both sides on a range of subjects, including the administration’s warrantless surveillance program and the 2006 firings of nine U.S. attorneys for allegedly political reasons. Mukasey reiterated the Bush administration’s support for providing retroactive immunity for telecommunications firms participating in the wiretapping program, and said a proposal to substitute the government as a plaintiff in about 40 lawsuits against phone companies would “open up their conduct and means and methods to scrutiny.”

Sen. Arlen Specter of Pennsylvania, ranking Republican on the Judiciary Committee, pressed Mukasey on whether the Bush administration violated the Foreign Intelligence Surveillance Act when authorizing wiretapping without court warrants.{mospagebreak}

“The point is that he acted in violation of statutes, didn’t he?” Specter asked.

“I don’t know whether he acted in violation of statutes,” Mukasey said.

{mosads}Feinstein said that the Justice Department appeared to be stonewalling an investigation by the Office of Special Counsel, which is looking into whether the Bush administration violated the Hatch Act in the firing of former U.S. Attorney for New Mexico David Iglesias.

“Cooperation with our investigation is not optional,” Scott J. Bloch, special counsel, said in a lengthy Jan. 25 letter seeking more information on whether Iglesias was fired for political reasons.

Mukasey assured Feinstein the department would comply with that request.

But most of the attention at the hearing focused on waterboarding.

Earlier in the hearing, Mukasey told Sen. Joseph Biden (D-Del.) that the method by which to measure when a tough interrogation technique is needed should fall under a “shocks-the-conscience” standard. That standard essentially is a “balancing test” between the “heinousness of doing it, the cruelty of doing it” versus the value of the information the detainee might divulge.

“You’re the first person I’ve ever heard say what you just said,” Biden said. “Matter of fact, it shocks my conscience.”

When asked by Sen. Edward Kennedy (D-Mass.) whether he would consider waterboarding torture if he were subjected to the practice, Mukasey replied: “I would feel that it was.”