Mukasey re­fuses to say that wa­ter­board­ing is il­le­gal

The Washington Times Weekly - - National - By Jerry Seper

At­tor­ney Gen­eral-des­ig­nate Michael B. Mukasey told the Se­nate Ju­di­ciary Com­mit­tee that an in­ter­ro­ga­tion tech­nique that sim­u­lates drown­ing is “re­pug­nant” but de­clined to call it il­le­gal — a po­si­tion that cast fur­ther doubt on whether he can be con­firmed.

In a lengthy let­ter re­leased by the com­mit­tee on Oct. 31, the re­tired fed­eral judge said that al­though the use of “cer­tain co­er­cive in­ter­ro­ga­tion tech­niques [. . . ] seem over the line or, on a per­sonal ba­sis, re­pug­nant to me,” hy­po­thet­i­cals are dif­fer­ent from real life and, in any le­gal opin­ion, ac­tual facts and cir­cum­stances are crit­i­cal.

“Any dis­cus­sion of co­er­cive in­ter­ro­ga­tion tech­niques nec­es­sar­ily in­volves a dis­cus­sion of, and a choice among, bad al­ter­na­tives,” he said. “I was and re­main loath to dis­cuss and opine on any of those al­ter­na­tives at this stage.

“I would not want any state­ment of mine to pro­vide our en­e­mies with a win­dow into the lim­its or con­tours of any in­ter­ro­ga­tion pro­gram we have in place and thereby as­sist them in train­ing to re­sist the tech­niques we ac­tu­ally may use,” he said.

Mr. Mukasey said that in the ab­sence of leg­is­la­tion “ex­pressly ban­ning cer­tain in­ter­ro­ga­tion tech­niques in all cir­cum­stances, one must con­sider whether a par­tic­u­lar tech­nique com­plies with rel­e­vant le­gal stan­dards.”

Banned by Congress and the U.S. mil­i­tary, the in­ter­ro­ga­tion tech­nique known as “wa­ter­board­ing” has been used by the CIA to ob­tain in­for­ma­tion from de­tainees in the war on ter­ror.

Sen. Pa­trick J. Leahy, Ver­mont Demo­crat and com­mit­tee chair­man, set a vote on the nom­i­na­tion for Nov. 6. He said last week be­fore the de­liv­ery of Mr. Mukasey’s let­ter that it did not ap­pear the for­mer judge had the 10 votes needed to send his nom­i­na­tion to the Se­nate floor.

It was not clear on Oct. 31 whether Mr. Mukasey’s 172-page let­ter — in re­sponse to 495 com­mit­tee ques­tions — saved his nom­i­na­tion, but sev­eral Democrats are ex­pected to vote against him.

“I am dis­ap­pointed by Judge Mukasey’s re­sponse,” said Sen. Joseph R. Bi­den, Jr., Delaware Demo­crat, pres­i­den­tial can­di­date and com­mit­tee mem­ber. “He was asked a di­rect ques­tion on the specifics of wa­ter­board­ing, and he re­fused to un­equiv­o­cally state that this prac­tice is tor­ture. For this rea­son, I shall op­pose his nom­i­na­tion to be the United States at­tor­ney gen­eral.”

Sen. Richard J. Durbin, Illi­nois Demo­crat and a com­mit­tee mem­ber, said Mr. Mukasey failed to an­swer “a sim­ple and straight­for­ward ques­tion: Is wa­ter­board­ing il­le­gal?”

“Why is this im­por­tant? Be­cause the way we treat our pris­on­ers de­ter­mines how cap­tured Amer­i­cans are treated,” he said. “Judge Mukasey makes the point that in the law, pre­ci­sion mat­ters. So do hon­esty and open­ness. And on those counts, he falls far short.”

Sen. Arlen Specter of Penn­syl­va­nia, the com­mit­tee’s rank­ing Repub­li­can, said that there “is no doubt the con­fir­ma­tion is at risk” but that Mr. Mukasey ap­peared un­able to give a bet­ter an­swer legally on the ques­tion of whether wa­ter­board­ing is tor­ture. He said the nom­i­na­tion should go for­ward.

“I think the ex­ten­sive let­ter which Judge Mukasey has sub­mit­ted goes about as far as he can go. He has re­pu­di­ated wa­ter­board­ing. He has re­jected it. But he has stopped short of mak­ing a de­ter­mi­na­tion of le­gal­ity,” he said. “The facts are that ex­pres­sion of an opin­ion by Judge Mukasey prior to be­com­ing at­tor­ney gen­eral would put a lot of peo­ple at risk for what has hap­pened.”

Sen. Or­rin G. Hatch, Utah Repub­li­can and com­mit­tee mem­ber, called on the panel to con­firm Mr. Mukasey.

“His in­sis­tence that in­de­pen­dent le­gal judg­ment rather than emo­tion or par­ti­san pres­sure will guide him only en­hances his fit­ness for tak­ing the helm at the Jus­tice De­part­ment,” he said.

White House press sec­re­tary Dana Perino de­fended the nom­i­na­tion, say­ing, “No one is ready to de­clare it DOA.”

In July, Pres­i­dent Bush signed an ex­ec­u­tive or­der ban­ning tor­ture dur­ing in­ter­ro­ga­tion of ter­ror sus­pects and al­though it does not specif­i­cally ban wa­ter­board­ing, it refers to tor­ture that in­cludes “the threat of im­mi­nent death.”

Al­li­son Shelley / The Wash­ing­ton Times

Michael B. Mukasey’s let­ter to the Se­nate Ju­di­ciary Com­mit­tee failed to quell con­cerns about his at­tor­ney gen­eral nom­i­na­tion.

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