Mukasey’s Answers to Torture Questions Unsatisfying to the Senate

By Anastacia Mott Austin

Originally seen as a shoo-in for the vacant U.S. Attorney General’s seat, Michael Mukasey’s answers to the Senate Judiciary Committee’s questions about waterboarding have left him high and dry.

Mukasey’s nomination has been hung up on the question of whether or not the controversial technique known as waterboarding constitutes illegal torture, and many senators have said it is the issue they will use to decide their votes.

Earlier this month the Committee had asked Mukasey, 66, a retired federal judge from New York, how he felt about waterboarding, an interrogation method that some classify as torture. The technique involves strapping a detainee to a board, covering his or her face with a cloth and pouring water over the face, which stimulates the gag reflex and makes the person think s/he is drowning.

When questioned, Mukasey said he was not familiar with the method. Some senators saw this as an evasion, as the technique is easily discovered with a simple Internet search (it took me approximately 45 seconds to find it on Google), and has been widely covered in the press since the Abu Ghraib incident.

Others say that Mukasey couldn’t really answer the question because he did not want to make operatives who may or may not be using the technique to think they were breaking the law, and he was not aware of whether or not waterboarding is used currently.

Every one of the 10 Democratic members of the Judiciary Committee wrote letters to Mukasey last week, asking him to clarify his position on the technique. He responded this week with a lengthy letter of his own that many feel does not answer the question.

While he finds the technique "personally repugnant," Mukasey wrote that he could not state an opinion on the method without being further informed about it, and about whether or not the current administration was employing it. "…hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical. Any discussion of coercive interrogation techniques necessarily involves a discussion of and a choice among bad alternatives. I was and remain loath to discuss and opine on any of those alternatives at this stage."

The Democrats are not satisfied with Mukasey’s response. "When we leave any doubt about our nation’s policy on torture, we send a terrible message to the rest of the world," said Senator Hillary Clinton (D-NY).

Agreed Patrick Leahy (D-VT) the chairman of the committee, who told reporters, "I [remain] very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal."

But Mukasey says he simply needs more information before he can take a firm stand on the issue. In his letter, Mukasey stated that while the technique was not specifically prohibited by Congress for use by the CIA, it was declared illegal for use by the military in 2005, through the Detainee Treatment Act.

He stated he would need to know if and how the method was being used before he could make a legal decision about it. "Legal questions must be answered based solely on the actual facts, circumstances and legal standards presented," and not on "hypotheticals," wrote Mukasey.

He added that he would need to review classified methods of interrogation, and, "If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President."

Republican senator Lindsay Graham (R-SC) said to reporters that he was pleased with Mukasey’s letter. "I think Judge Mukasey did himself some good with this letter. He helped his cause with me." However, Graham added that he did think that waterboarding was clearly an illegal torture method.

Arlen Specter (R-Pa) feels that Mukasey answered the question satisfactorily, telling reporters, "I think that 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."

It is interesting to note that Mukasey has answered, in a 172-page letter, 495 questions put to him by the Committee. The question about waterboarding appears to be the most controversial of the bunch. But there were concerns about other areas as well.

In addition to his response to the torture question, some senators were concerned about Mukasey’s statement that the President is not prevented by Constitutional law from carrying out eavesdropping or wiretapping acts on terrorism suspects without a court order.

"We don't need another attorney general who believes that the president enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security," said Barack Obama (D-Ill).

The Judiciary Committee has set a date for November 6th for the panel to vote on Mukasey’s nomination.