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Senate to Hold Mukasey Confirmation Vote Tuesday
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.
Leahy reacted with blunt dissatisfaction, saying in a statement yesterday that "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."
Specter had 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 last night. He added that he was leaning toward voting for Mukasey.
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."