Today’s Must ReadThe doubts, the concerns, the reasons for pause about attorney general nominee Michael Mukasey are coming fast and furious from senators left and right these days.
It’s been a steep descent from the heady days when Senate Judiciary Committee Chairman Patrick Leahy (D-VT) preceded Mukasey’s confirmation hearings by saying, “I like him.”
The tone seemed to first shift from one of friendly disagreement to frank disappointment with the question by Sen. Sheldon Whitehouse (D-RI): is waterboarding unconstitutional? When Mukasey couldn’t give a straight answer, Whitehouse pronounced himself “very disappointed.”
Mukasey’s dodge was transparent. Waterboarding was unconstitutional if it rose to the level of torture. And as an explanation for that “massive hedge,” as Whitehouse called it, he professed not to know “what’s involved in the technique.”
Five days later, the Democrats on the committee signed a joint letter to Mukasey, making sure that he knew what’s involved, and demanded an answer to the question as to whether waterboarding is torture.
Then two days later, the doubts grew louder. Two key Democrats, Senate Judiciary Committee Chairman Patrick Leahy (D-VT ) and Sen. Dick Durbin (D-IL) both said publicly that their votes depended on Mukasey’s answer to the waterboarding question.
Then it was Sen. John McCain (R-AZ) who saw an opening after Rudy Giuliani refused to call waterboarding torture (“It depends on who does it.”). Most certainly it’s torture, McCain said. When pressed, he stopped short of saying that he would oppose Mukasey’s nomination if he didn’t say the same, but he added to the chorus of those who professed to be interested in what Mukasey’s answer to follow-up questions will be.
Yesterday, Sen. Lindsay Graham (R-SC) said that if Mukasey “does not believe that waterboarding is illegal, then that would really put doubts in my own mind.”
Rep. Arlen Specter (R-PA) has also thrown in his lot of doubts and concerns.
So it would seem that virtually every senator on the judiciary committee, with the exception of its most conservative members, is eagerly awaiting Mukasey’s answer on the waterboarding question — an answer which he has already given. And given the contours of that answer, it’s improbable that he will give any other.
Mukasey, he made clear, is anti-“torture.” It’s abhorrent and unconstitutional, he said. But when asked about any particular interrogation techniques, he hedged. And the reason for that was clear:
I don’t think that I can responsibly talk about any technique here because — (pause) — of the very — I’m not going to discuss and I should not — I’m sorry I can’t discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that.
So Mukasey absolutely refused to call any particular technique unconstitutional. This was a hedge so fine that he could call the application of a certain technique torture, while reserving judgment as to any application of that technique is torture. At one point during the hearings, he told Sen. Durbin: “It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else.” In other words, waterboarding is torture when it rises to the level of torture (however torture might be defined) — but the technique in and of itself does not necessarily constitute torture.
This is simply the best answer that Mukasey is prepared to give. Perhaps a more artful phrasing can make it more “congenial.” Certainly Mukasey will strain himself to stress where he and the senators agree (torture is bad) and keep the emphasis on where they can’t (waterboarding is torture).
As for where all this doubting leads? Perhaps it’s just a way of sending a message. Reports The New York Times: “Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil.”
Maybe that’s the reason why only two senators have actually come out to actually oppose Mukasey’s nomination: Sens. Bernie Sanders (I-VT) and Chris Dodd (D-CT).
