Nomination Stalled on Torture Concerns

Attorney General nominee Michael Mukasey's confirmation hearings are hung up over bipartisan concerns about his answers on questions relating to interrogation of terrorism suspects. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent Mukasey a letter last week asking him to respond to a specific question on one technique which has been hotly debated, waterboarding. "Please respond to the following question: Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations," Sen. Leahy asked.
At his confirmation hearings, Mukasey was vague on the question of waterboarding, saying that he didn't know if it was torture. He was willing to discuss torture in general, calling it unconstitutional. However, he seemed sufficiently unaware of the details of waterboarding to discuss it further, or else was unwilling to characterize the practice in public before he had had a chance to advise the president on this point.


That unwillingness to give the Senators a taste of the advice he might give to the president has caused two Republicans to openly call for Mukasey to more broadly explain his views on the practice. In comments on CBS's "Face the Nation" Sunday, Judiciary Committee member Sen. Lindsey Graham (R-SC) indicated that the torture issue was a litmus test for the nominee to win his support.

"If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind...I think it would serve the attorney general nominee well to embrace that concept. He's talked around it."

Presidential candidate and former prisoner of war Sen. John McCain, who has been an outspoken critic of torture, also urged the nominee to be more forthcoming with his views on Sunday. Appearing on ABC's "This Week," McCain said that Mukasey unwillingness to answer direct questions on torture showed a troubling lack of experience.

"Anyone who says they don't know if waterboarding is torture or not has no experience in the conduct of warfare and national security...It isn't about an interrogation technique. It isn't about whether someone is really harmed or not. It's about what kind of a nation we are. We are a nation that takes the moral high ground."

McCain and Graham are seen as leaders in a group or more moderate Republicans that have broken with their Republican colleagues in the past over issues as diverse as judges, taxes, and environmental issues. Were Mukasey to lose the support of Graham and McCain, it could give other moderate Republicans political cover to raise concerns of their own.

Mukasey is being put in a difficult position for political reasons. Senate Democrats praised the nomination when it was made as a triumph for competency following the perceived mismanagement of the Department of Justice by former Attorney General Alberto Gonzales. Sen. Chuck Schumer (D-NY) is fond of Mukasey and even put his name forward as a conservative that would be acceptable to Democrats. Now, however, Judiciary Committee Democrats and some Republicans are using the occasion of his confirmation hearings to extract a political pound of flesh from the White House. Mukasey will in the end be forced to answer the questions. There are only 15 months left in the Bush presidency and very weighty issues to wrap up before it expires.