Mukasey: Unsure on Waterboarding

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The New York Sun

WASHINGTON — President Bush’s nominee for attorney general told the Senate Judiciary Committee today that he does not know whether waterboarding is illegal. He pledged to study the matter and to reverse any Justice Department finding that endorses a practice that violates the law or the Constitution.

“If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique,” Judge Michael Mukasey wrote to the committee’s 10 Democrats.

Elsewhere in the letter, Judge Mukasey called the interrogation technique that simulates drowning “repugnant to me.” He said that he did not know if the technique was still being used by American personnel because he is not yet cleared to receive such classified information. Still, he pledged both to stand up to the president if necessary and to seek ways to protect the nation from terrorism.

“I would leave office sooner than participate in a violation of law,” Judge Mukasey wrote.

It was not immediately clear whether the answer would satisfy members of the panel enough to win Judge Mukasey the 10 votes his nomination needs to be reported to the full Senate with a favorable recommendation. The nomination is not on the agenda for the Judiciary Committee’s business meeting on Thursday, but it can be added at anytime up until then.

Earlier in the day, Republicans complained about the delay. Even before they heard Judge Mukasey’s answer, the Senate’s Democratic presidential candidates announced that they would vote against confirmation, in large part because of the lack of a definitive answer on the waterboarding question.

“We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law,” Senator Clinton said.

Mrs. Clinton said Judge Mukasey has had plenty of chances to clarify his answers and state his opposition to interrogation techniques. “His failure to do so leaves me no choice but to oppose his nomination,” she said.

Mr. Mukasey’s letter was expected to boost support for his confirmation, which in the last week had shifted from nearly unanimous to troubled.

Democrats and a few Republicans said they were concerned about his refusal to answer whether waterboarding, the interrogation technique that simulates drowning, is illegal. A second question focused on a Mukasey comment that appeared to indicate he believes the president in some circumstances is not constrained by the law.

In his four-page letter, Judge Mukasey said he would try to balance constitutionality with “our shared obligation to ensure that our nation has the tools it needs, within the law, to protect the American people.” But he declined to take a stand on waterboarding because, he said, the question is hypothetical.

It’s not known, Judge Mukasey said, whether waterboarding or any other specific harsh interrogation technique is being used, or in what circumstances.

“Legal opinions should treat real issues,” Judge Mukasey wrote.

“I have not been briefed on techniques used in any classified interrogation program conducted by any government agency,” he added. “For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees.”

Waterboarding cannot be used by the military under the Army field manual and a 2005 law on detainee treatment. But Congress has not passed additional legislation banning certain harsh interrogation techniques in all circumstances, Judge Mukasey noted, and he also placed some onus for the uncertainty on Congress.

Judge Mukasey said that after being briefed on current practices as attorney general, he would evaluate whether they would violate the Constitution or American or international law.

Specifically, he said, he would decide wither a technique is torture based on two factors in the American criminal code: whether it was intended to cause severe physical pain or suffering or prolonged mental harm.


The New York Sun

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