On Day 2, Democrats See Change In Mukasey

Attorney general nominee Michael B. Mukasey listens to a question from Sen. Sheldon Whitehouse (D-R.I.) during Mukasey's second day of testimony.
Attorney general nominee Michael B. Mukasey listens to a question from Sen. Sheldon Whitehouse (D-R.I.) during Mukasey's second day of testimony. (By Susan Walsh -- Associated Press)
By Dan Eggen and Paul Kane
Washington Post Staff Writer
Friday, October 19, 2007

President Bush's choice for attorney general, Michael B. Mukasey, embraced some of the administration's most controversial legal positions yesterday, suggesting that Bush can ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws.

Mukasey struck a different tone on the second and final day of his confirmation hearing, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president cannot override constitutional and legal bans on torture and the inhumane treatment of prisoners.

His shift prompted an unexpected clash with key Democrats on the Senate Judiciary Committee, although none said Mukasey's confirmation was in question.

The panel's chairman, Sen. Patrick J. Leahy (D-Vt.), who had heaped praise on the former judge's qualifications and testimony on Wednesday, told him that, "on a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law. That seems nowhere near as bright a line today."

Mukasey aroused Democrats' concerns by testifying that there may be occasions when the president's powers as commander in chief could trump a federal law requiring that a special court approve intelligence-related wiretaps. That answer jibes with one of the legal rationales used by the Bush administration in defense of its controversial Terrorist Surveillance Program, under which the National Security Agency eavesdropped on calls between persons in the United States and those overseas without first securing a court warrant.

Mukasey also repeatedly demurred when asked whether an interrogation technique that involves simulated drowning, known as waterboarding, constitutes torture and is therefore illegal. "I don't know what's involved in the technique," Mukasey said. "If waterboarding is torture, torture is not constitutional."

"That's a massive hedge," responded Sen. Sheldon Whitehouse (D-R.I.). "I mean, it either is or it isn't." Mukasey never directly answered the question.

White House spokesman Tony Fratto defended Mukasey, saying he "is not in a position to discuss interrogation techniques, which are necessarily classified," because he was not briefed on such programs.

Waterboarding generally involves strapping the prisoner to a hard surface, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning, according to human rights groups. The practice has been prosecuted as torture in U.S. military courts since the Spanish-American War.

U.S. intelligence sources have said the tactic was used by the CIA during interrogations of the alleged mastermind of the Sept. 11, 2001, terrorist attacks, Khalid Sheik Mohammed, and several others.

"The United States' chief law enforcement officer should be able to say -- without hesitation -- that strapping someone to a board, stuffing a rag in his mouth, and pouring water over his head so he fears drowning is torture," Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, said in a statement after Mukasey's testimony.

While Whitehouse and several other Democrats said Mukasey's new answers were disappointing, they did not indicate that they will oppose his confirmation. A committee vote on Mukasey's nomination could occur as early as next Thursday, with a full Senate confirmation vote likely by the end of the month.

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