Mukasey refuses to call waterboarding illegal

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 yesterday, 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 Tuesday. He said this 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 yesterday 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.

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