By Dan Eggen
Washington Post Staff Writer
Saturday, October 27, 2007

A growing number of Senate Democrats who had previously praised attorney general nominee Michael B. Mukasey are now focusing on his refusal to answer a question about torture as a pivotal issue for his confirmation.

Sen. Joseph R. Biden Jr. (D-Del.), a member of the Judiciary Committee, yesterday joined other key Democrats in saying his vote will depend on whether Mukasey declares that a disputed CIA interrogation technique known as "waterboarding" qualifies as illegal torture under U.S. laws.

While no lawmaker has predicted Mukasey's defeat, several have suggested that his confirmation is less assured than it initially seemed.

Mukasey aroused lawmakers' concerns when he repeatedly declined to answer questions about waterboarding during the second day of his confirmation hearings. He said he was not sufficiently familiar with the practice to render an opinion.

"My support for Judge Mukasey's nomination depends in part on him stating clearly that waterboarding constitutes torture and that the president is bound by the law," Biden said in a statement.

His comments followed similar remarks on Thursday by Sens. Richard J. Durbin (D-Ill.), the majority whip, and Patrick J. Leahy (D-Vt.), the Judiciary chairman. Leahy has postponed a vote on Mukasey's nomination until he answers questions on waterboarding, surveillance and other issues. Senate Majority Leader Harry M. Reid (D-Nev.) also told reporters the issue is important to his vote.

"For those of us who care about torture, his answer on waterboarding is very important," Durbin said in an interview yesterday. "I was looking for something different from Judge Mukasey, but so far his answers have been disappointing."

Legislative aides said other Democratic members of the panel are waiting for Mukasey's answers before deciding whether to support him.

The committee's ranking Republican, Sen. Arlen Specter (Pa.), has also written a letter to Mukasey demanding answers about waterboarding and other issues. Other Republicans have said that because Mukasey had no connection to or knowledge of waterboarding, he should not have to answer questions about it.

The skepticism marks a shift from 10 days ago, when Reid, Leahy and other top Democrats praised Mukasey's qualifications and predicted his easy confirmation by the Senate.

The new pressure on the torture issue poses a political and legal challenge for the Bush administration, which officials have said authorized the use of waterboarding on at least three detainees kept in secret detention by the CIA after the Justice Department said it was legal. In appointing Mukasey, who had a reputation as a pragmatic outsider, administration officials sought to avoid a new fight over the controversial policies that tarred former attorney general Alberto R. Gonzales.

White House spokesman Tony Fratto said yesterday that Mukasey will answer lawmakers' questions as best he can but cautioned that Mukasey does not have the security clearances to be briefed on classified programs. "We think it still ought to be a sure thing," Fratto said.

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.