Bush: It's Mukasey or Nothing

Dan Eggen and Paul Kane write in The Washington Post: "As Democratic opposition builds over attorney general nominee Michael B. Mukasey, no Democratic lawmaker has found himself in a tighter spot than Sen. Charles E. Schumer (N.Y.), who had eagerly recommended the former federal judge as a consensus candidate. . . .

"Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past."

In a telephone interview yesterday, "Schumer said that his decision will hinge largely on whether he believes Mukasey would be independent of the White House. He said that was 'called into question' by some of Mukasey's views."

Here's relatively new White House Counselor Ed Gillespie trying to muddy the issue on CNN yesterday.

Wolf Blitzer asked: "Why not simply say, you know what, waterboarding is torture and it's never going to be used?"

Gillespie replied: "Well, Wolf, the question that was put to Judge Mukasey is, is waterboarding legal? And the judge rightly said, you know, I don't know if it is or is not used as a technique in a program that is under the supervision of the professionals in the United States government. The government has never confirmed any techniques, have confirmed the existence of an enhanced interrogation program, but never talked about any techniques.

"And so Judge Mukasey doesn't have the benefit of having access to classified information as to what does or does not occur in this program and any legal underpinnings or any analysis of it. And to ask him to render a legal opinion without that kind of information or access to that kind of information is frankly unfair. And I don't think anyone who actually deserves to serve as attorney general, the chief law enforcement officer of the United States of America, would render a legal opinion without access to that kind of information."

Blitzer: "Two senators, both Republicans, who have been briefed on this technique, both say it's torture and should be illegal. . . . Both of those are Republicans, and they don't mince any words."

Gillsepie: "And both of them do have -- have been briefed and read into the program, Wolf, and have a basis by which to make that assessment. Both of them also today came out in support of Judge Mukasey."

Scott Horton blogs for Harpers: "There has been no shortage of litmus tests in the past: abortion, gay marriage, the flag amendment--whatever hot-button issue the G.O.P. cooks up for its next election campaign. But the torture litmus test is new, and it seems to be key for lawyers. It really is an exercise in Kool Aid drinking. If you're prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything. Indeed, there is no question about it. Waterboarding is torture and has been understood to be torture in a formal sense for over a hundred years. Soldiers who used it were court-martialed, and the attempted defense of military necessity was smacked down by the Army's Judge Advocate General in 1903. There is no shortage of other precedent. This is why Mukasey's dodge on the issue--first a very primitive dodge, and then a more sophisticated one--is so troubling."

The Washington Post editorial board writes that Bush yesterday "bemoaned the imperiled state of Mr. Mukasey's nomination without one iota of self-awareness that the nomination is in trouble because of the president's own warped policies on torture."

And yet, the editorial advises: "Those senators who truly want to bring the nation back from the disgrace of Mr. Bush's interrogation policies should do two things. They should confirm Mr. Mukasey, who is far more independent and qualified than either of Mr. Bush's previous two nominees. And they should do something which, for all the rhetoric, they have so far declined to do: ban torture, by passing the National Security with Justice Act sponsored by Sen. Joseph R. Biden (D-Del.)."