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As expected, Michael Mukasey did not change his position on the waterboarding question. From the AP:

President Bush's nominee for attorney general told the Senate Judiciary Committee on Tuesday 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," Michael Mukasey wrote to the committee's 10 Democrats.


We'll have Mukasey's full answer, as well as the reaction from Democrats and Republicans who've said that they're vote on Mukasey depends on this answer, as they become available.

Update: Time had some background of the negotiations to produce this evidently unsatisfactory statement in a story today. You won't be shocked to learn that Dick Cheney played a typically inflexible role in the back and forth:

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Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) pronounced himself pleased that the administration had handed over four "previously undisclosed documents" relating to the administration's interrogation policies. As he wrote to White House counsel Fred Fielding in a letter: "The release of these documents restarts the incremental process of providing necessary information to Congress and to the American people about the Administration’s legal justifications and policies with regard to torture and interrogation." After months of stonewalling, it was a new day!

Well, not so much. Apparently three of the four documents, called "previously undisclosed," in the committee's press release at the time, were already in the public domain.

For instance, Leahy could have gone to the ACLU's website to read the February 4, 2005 letter from Acting Assistant Attorney General Daniel Levin that the administration handed over. And the December 30, 2004, memo (pdf) from Levin that famously redefined torture? The Justice Department released that publicly itself at the time. The third document Leahy cites is private testimony (pdf) by a former Justice Department official back in July, 2004, to the House intelligence committee. That, too, is in the public record.

And the fourth? It remains classified, although it's general contents have already been widely reported.

Keep in mind that the administration has still not turned over any of the memos during Alberto Gonzales' tenure as attorney general, such as the ones reported by The New York Times earlier this month.

Leahy's statement is below.

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Since news broke yesterday that the State Department had offered immunity deals to the Blackwater guards involved in the September 16th Nisour Square shooting, which left seventeen Iraqis dead, inquiries from Democrats have mounted, and the State Department has evidently been scrambling to respond.

And it's evident what their response is: at least we didn't offer absolute, blanket immunity to the guards from prosecution. As part of the PR offensive, two "senior State officials" stressed just that point to CNN earlier today. But the AP, which broke the story, never reported any such thing.

The type of immunity offered the guards was "use" immunity, meaning that the guards were offered the ability to talk with the promise that their statements couldn't be used in a criminal prosecution. ABC got a hold of the statements today and confirms this.

So State Department spokesman Sean McCormack tried to look on the bright side in a press briefing:

"The kinds of, quote, 'immunity' that I've seen reported in the press would not preclude a successful criminal prosecution," he insisted.

"The Department of State cannot immunize an individual from federal criminal prosecution," he added.


There are a couple of problems with that, however.

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With presidential primary politics, things move faster. Now the number of senators who have unequivocally opposed Mukasey's nomination is four. Says Sen. Hillary Clinton (D-NY):

"We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law. His failure to do so leaves me no choice but to oppose his nomination."


A large number of senators have put off any definitive answer on Mukasey until he again answers whether waterboarding qualifies as torture.

Here's Toby Moore, formerly a redistricting expert under John Tanner in the voting rights section, explaining why he, and so many other career employees left the Civil Rights Division.



Moore explained that he'd left because he'd found there was "no sense" in doing his work "if it didn’t make a difference in the decisions being made." Tanner and the political appointees above him, Moore explained, decided issues "of significance and controversy" (like whether to approve Georgia's voter ID law) based on "political expediency." So Moore, and many other career analysts and attorneys, left.

After the brutal questioning by Rep. Artur Davis (D-AL), Rep. Keith Ellison (D-MN) followed up. This time, voting rights section chief John Tanner had a brief reply as to what he was really apologizing for, when he apologized for saying that minorities "die first."



"I hurt people," Tanner said quietly into the microphone.

Eventually, under Ellison's incredulous questioning, Tanner admitted that "people age in the same way." To which Ellison replied: "My dad is almost eighty. He's black."

If there's been a more brutal examination of a witness in a Congressional hearing since the days of Alberto Gonzales, I haven't seen it.



Rep. Artur Davis (D-AL) laid into voting section chief John Tanner during the hearing today over his comment earlier this month that "our society is such that minorities don't become elderly the way white people do. They die first." Tanner made the remarks as justification for his conviction that voter ID laws actually discriminate against whites. In Tanner's calculus, since minorities don't age "the way white people do," the effect of voter ID laws on the elderly means that whites are disproportionately affected. And since younger African-Americans frequently carry IDs because of racial profiling and the need to cash checks at "a check cashing business," voter ID laws actually favor African-Americans.

Tanner kicked off the hearing by repeating his apology for the comment, regretting that his "explanation of the data came across in a hurtful way."

But Davis wasn't mollified. I'm "not sure what you’re apologizing for," he said. Did he still think the statement was correct? "It is a sad fact..." Tanner began. Is that accurate? Davis pressed. Tanner began to say that he believed census data in Georgia (the subject of the most controversial voter ID law) showed that life expectancy among minorities was lower.

"But that's not what you said," Davis said. Tanner admitted that his was a "very clumsy statement." Davis pressed on: is it "accurate that minorities don't become elderly because white people do?" When you say "'they die first,' who is 'they?'" he asked.

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Rep. Don Young (R-AK) didn't just look out for Alaska when he chaired the House transportation committee. He saw the big picture, keeping in mind the myriad of needs across the country, particularly in those districts that hosted fundraisers for Young's campaign fund. For example, after voters in Arkansas donated thousands to him and his PAC, he helped channel some $415 million in earmarks to the state, situated about 4,000 miles away from his district.

The Arkansas Democrat Gazette reports that this week the town of Pine Bluff kicked off construction of a highway interchange project. Pine Bluff residents donated $66,000 to Young's campaign fund just before their needed-earmark appeared in the pork-filled highway bill of 2005:

...the connector has seen more than its share of congressional attention over the years. It started with a $ 100 million earmark in 1998 as well as an additional $ 40 million six years later. In 2006, Congress set aside $ 72 million more for the project.

Many credit U. S. Rep. Mike Ross, D-Ark., and his predecessor, Rep. Jay Dickey, R-Ark., as well a grass-roots lobbying effort that included throwing fundraisers for a former influential chairman of the House Transportation and Infrastructure Committee, Rep. Don Young, R-Alaska.


When Young's tenure as transportation committee chair ended, he offered the Anchorage Daily News his thoughts:

"Now I can say this is for Alaska and not have to be worried about, you know, Arkansas," said Young with a grin.

Rep. Jerrold Nadler (D-NY) kicked off the questioning today by asking John Tanner about his involvement in forcing through an approval of the infamous 2005 Georgia voter ID law (here's the whole sorry story). Tanner overruled the recommendation from Civil Rights Division staff attorneys to reject the law and then made the unprecedented move of silencing their opposition. After Tanner recommended approval of the law (one day after the staff recommended against that), a federal appeals court judge later barred implementation of the law, comparing it to a Jim Crow-era poll tax.



Under questioning today, Tanner avoided discussing his clash with his own staff, who had made their recommendation in a forcefully worded memo. Instead, he put the emphasis on the fact that he'd "made the decision." When Nadler pushed, Tanner replied, " I can't discuss internal deliberations," and made reference to the "confidence of our clients." This apparent invocation of attorney-client privilege seemed to catch Nadler off guard. But isn't that public information? he asked. Tanner declined to elaborate, instead emphasizing again that the decision was his based on "careful analysis."

In the Georgia ID memo, Tanner also made the questionable move of reversing the usual Justice Department practice of including his own contrary opinion when he disagreed with the staff recommendation. Instead of forwarding on his staff's recommendation alongside his own to the Department leadership, Tanner simply removed the staff's dissent. When Nadler asked him if he'd abandoned this "longstanding practice," Tanner replied, "That has not been the uniform practice." But was that the general practice? Nadler countered. "Prior to that time, it had not been done," Tanner admitted.

The hearing, broadcast on C-SPAN 3 and streaming on the House Judiciary Committee's website, just got under way. Voting rights section chief John "They Die First" Tanner is, of course, the star witness.

Rep. John Conyers (D-MI) kicked it off with, "We're in a crisis, and it's the duty of this committee to determine what went wrong."

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