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Mukasey Losing Democrats' Backing
Nominee Unsure If Waterboarding Breaks Torture Law

By Dan Eggen
Washington Post Staff Writer
Wednesday, October 31, 2007

Attorney general nominee Michael B. Mukasey told Senate Democrats yesterday that a kind of simulated drowning known as waterboarding is "repugnant to me," but he said he does not know whether the interrogation tactic violates U.S. laws against torture.

Mukasey's uncertainty about the method's legality has raised new questions about the success of his nomination. It seemed a sure thing just two weeks ago, as Democrats joined Republicans in predicting his easy confirmation to succeed the embattled Alberto R. Gonzales.

Mukasey raised alarms among Democrats and human rights groups during testimony on Oct. 18. He declined to say whether waterboarding is torture, prompting key Democrats to press the point and say their vote will hinge on his answer to that question.

The chairman of the Senate Judiciary Committee has so far refused to schedule a vote on Mukasey's nomination. All four Democratic senators running for president said before the release of Mukasey's letter yesterday evening that they will vote against him because of his handling of the waterboarding issue.

Sen. Hillary Rodham Clinton (N.Y.), the Democratic front-runner, said yesterday that "we cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law." Sen. Barack Obama (Ill.) and Sen. Joseph R. Biden Jr. (Del.), a member of the Judiciary panel, issued similar statements.

By seizing on the waterboarding issue, Democrats hope to force Mukasey to disavow a controversial technique that top Bush administration officials have deemed legal. If he were to say the tactic is illegal, he would effectively deem earlier Justice Department opinions unlawful.

In a four-page letter to the Judiciary Committee, Mukasey walked a tightrope by outlining the laws and treaties forbidding torture and other cruel treatment, and explaining the legal analysis he would undertake of "coercive" techniques, while generally declining to render judgments.

Mukasey said that techniques described as waterboarding by lawmakers "seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans." But, he continued, "hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical."

Mukasey also said he is reluctant to offer opinions on interrogation techniques because he does not want to place U.S. officials "in personal legal jeopardy" and is concerned that such remarks might "provide our enemies with a window into the limits or contours of any interrogation program." His arguments are similar to those advanced by the Bush administration in its refusal to discuss waterboarding or other interrogation techniques.

Reiterating a promise made during his testimony, Mukasey said that he "will not hesitate" to "rescind or correct any legal opinion of the Department of Justice that supports" illegal interrogation techniques. Since September 2001, the CIA has repeatedly used harsh methods that the Justice Department ruled were legal but that independent experts have said violate domestic and international law.

Sen. Patrick J. Leahy (D-Vt.), the Judiciary panel's chairman, reacted with blunt dissatisfaction, saying in a statement yesterday that he will continue to delay any vote on Mukasey until the nominee answers more questions from lawmakers. "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," he said.

But Leahy, who said last week that "my vote would depend on him answering that question," stopped short of declaring he will oppose the nomination. Majority Whip Richard J. Durbin (D-Ill.), also issued a statement criticizing Mukasey but did not say whether he would vote no.

"We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal?" Durbin said. "While this question has been answered clearly by many others . . . Judge Mukasey spent four pages responding and still didn't provide an answer."

The committee's ranking Republican, Sen. Arlen Specter (Pa.), has also demanded answers from Mukasey about waterboarding and other issues. Other Republicans have supported the White House's position that Mukasey had no connection to or knowledge of waterboarding and should not have to answer questions about it.

Nine Republicans on the House Judiciary Committee yesterday issued a news release urging the Senate to "stop playing politics with the Justice Department."

Lindsey O. Graham (R-S.C.), a Senate Judiciary Committee member and military lawyer who has frequently criticized the administration's interrogation policies, said he was heartened by Mukasey's letter, including his view that the Detainee Treatment Act, passed by Congress last year, bars waterboarding in military interrogations. The act does not cover CIA interrogations.

"The letter shows that he understands mainstream legal reasoning. There's nothing off base here," Graham said in an interview.

White House spokesman Tony Fratto said Mukasey's response was "very thorough" but was necessarily limited by his lack of a security clearance. "I think it gives a clear path to how he would tackle this particular question and questions like it," Fratto said. "It's what you would want to see as an attorney general."

Waterboarding generally involves strapping a prisoner to a board, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning, human rights groups say. The practice dates at least to the Spanish Inquisition and has been prosecuted as torture in U.S. military courts since the Spanish-American War. The State Department has condemned its use in other countries.

Officials have said the Bush administration authorized the use of waterboarding on at least three prisoners kept in secret detention by the CIA after the Justice Department said it was legal, including alleged Sept. 11 mastermind Khalid Sheik Mohammed. The practice was halted in 2005, sources have said.

Caroline Fredrickson, Washington legislative director for the American Civil Liberties Union, said Mukasey does not need a classified briefing to answer the question. "He seems like he's just an artful hairsplitter," Fredrickson said.

Washingtonpost.com staff writer Paul Kane contributed to this report.

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