Torture Stance Raises Doubts on Mukasey

A vote on Mukasey's nomination by the Judiciary Committee is unlikely for at least two weeks, legislative aides said yesterday. That means the nomination may come before the full Senate shortly before Thanksgiving.

Mukasey, a former federal prosecutor who served 18 years as a federal judge in New York, enjoyed the early and highly public support of Sen. Charles E. Schumer (D-N.Y.). Schumer said this month that Mukasey was likely to be confirmed.

But Schumer spokesman Brian Fallon said yesterday that the waterboarding issue "raises serious concerns for the senator. . . . He is waiting for Judge Mukasey's answers before passing any judgment."

The waterboarding tactic generally involves strapping the prisoner to a board, 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 dates to at least the Spanish Inquisition, and has been prosecuted as torture in U.S. military courts since the Spanish-American War.

In testimony before the Judiciary panel on Oct. 18, Mukasey demurred when asked whether waterboarding constitutes torture and is therefore illegal. "I don't know what's involved in the technique," he said. "If waterboarding is torture, torture is not constitutional."

The committee's 10 Democrats responded on Tuesday with a letter to Mukasey demanding that he answer the question directly and noting that the practice is well enough known that the State Department routinely condemns its use in other countries. That letter, spearheaded by Durbin, stopped short of threatening opposition to Mukasey's nomination.

Bradford A. Berenson, a lawyer who worked in the White House counsel's office and who supports the nomination, said that "it's just unreasonable to expect him to express a firm view [on waterboarding] one way or the other unless he's more versed in the facts. It's not as if he went in there and told them it wasn't torture. He just wanted to be better informed."

Mukasey also testified that while the president could not authorize conduct that would violate torture laws, 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.

In a letter to Leahy released by the senator yesterday, Mukasey reiterated that he believes the Constitution and U.S. statutes are explicit in forbidding torture but are less clear on the boundaries of surveillance. "The weight of authority indicates that warrantless surveillance to collect foreign intelligence is not unconstitutional so long as it is otherwise reasonable," Mukasey wrote.