Senate Judiciary Committee members (l to r) Senators. Orrin Hatch (R-UT), Arlen Specter (R-PA), Chairman Patrick Leahy (D-VT) and Edward Kennedy (D-MA) on November 6, 2007. (Photo by Chip Somodevilla/Getty Images)
by James Oliphant
The Senate Judiciary Committee Tuesday approved the nomination of Michael Mukasey as the next attorney general of the United States, likely ensuring his confirmation by the full Senate.
The vote was tight, 11-8, with two Democratic senators, Dianne Feinstein (Calif.) and Charles Schumer (N.Y.) crossing party lines to join Republicans in endorsing Mukasey.
Last month, at his hearing before the committee, Mukasey's confirmation appeared secure, as senators from both parties praised his qualifications – he spent 18 years as a Manhattan federal judge – and his independence from the White House political apparatus.
But Mukasey, 66, courted a firestorm when he refused to declare that the interrogation technique called "waterboarding" constituted illegal torture under U.S. law. Mukasey cited an unfamiliarity with the practice and a reluctance to provide a legal opinion without more information as the primary reason.
That led, last week, to several Democrats, including the chairman of the committee, Sen. Patrick Leahy (Vt.) and the frontrunner for the presidential nomination, Sen. Hillary Clinton (N.Y.) to oppose Mukasey's nomination. At the committee meeting Tuesday, Leahy said the administration – and Mukasey – had put Americans abroad at risk by not condemning waterboarding, saying they were now vulnerable to the practice.
"The U.S. government is basically saying to American citizens, if you go abroad, you are on your own," Leahy said.
But the impending showdown was defused when Schumer and Feinstein broke ranks. For Schumer, the choice couldn't have been easy. As Mukasey's home state senator, he was a steadfast patron of the former judge, even introducing him to the committee. For Feinstein, it marks the second time in as many months that she has defied her Democratic colleagues on the committee. Last month, she supported the nomination of federal appeals judge Leslie Southwick, earning the ire of civil rights groups. Those groups are even less happy with Feinstein today.
CodePink members mock Senate Judiciary Committee member Sen. Dianne Feinstein (D-CA) and President Bush on November 6, 2007 (Photo by Chip Somodevilla/Getty Images)
There was also some doubt as to which way the ranking member of the committee, Sen. Arlen Specter (R-Pa.) would vote. In a long colloquy, Specter explained that he found Mukasey's answers concerning waterboarding "unsatisfactory" until Specter personally called Mukasey Monday. Specter said the nominee assured him that if Congress passed a law declaring waterboarding to be illegal torture, Mukasey would enforce it. Specter said Mukasey also told him that the president could not supersede Congress judgment by executive order. That was enough, Specter said, to gain his support.
"I think Judge Mukasey went as far as he could go," Specter said. "We're the people who ought to decide it."
Congress had the opportunity to declare waterboarding illegal when it passed the Military Commissions Act in 2006, but the effort failed on the Senate floor by a close vote.
Sen. Edward Kennedy (D-Mass.), in announcing his opposition to Mukasey, implicitly criticized Specter's rationale, saying "We are supposed to find comfort . . . that he will enforce the laws that we pass? Have our standards sunk so low?"
Kennedy described waterboarding at length, detailing how it involves immobilizing the prisoner, with his feet elevated. Cellophane is placed over the mouth and water is then poured on the face, inciting the gag reflex and creating a fear of impending death. "Waterboarding is a barbaric practice," he said. "It's an ancient technique of tyrants."
Sen. Richard Durbin (D-Ill.) voted by proxy to oppose Mukasey. He was not present for the meeting. The full Senate could take up the nomination later this week. Mukasey is expected to gain the more than 60 votes needed to prevent a filibuster.
Protesters from the activist group Code Pink booed and hissed when the vote was announced, causing Leahy to warn them against further outbursts.
• 
• 
• 
Comments
Well, good for Code Pink, but I think they are going to have to find a new political party.
Those Democrats fall into step
behind the Republicans whenever and wherever they can. The Iraq war. The budget.
SCHIP. Nancy Pelosi and Harry Reid have to be the least competent Democratic congressional leaders in decades. But those scaredy cat Dems can't bring themselves to get rid of them either. All you have to say is boo...security and those Democrats scattered like a brood of chicens.
Posted by: Helena | November 6, 2007 11:06 AM
A Punishable Offense
In the war crimes tribunals that followed Japan's defeat in World War II, the issue of waterboarding was sometimes raised. In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian. Asano was sentenced to 15 years of hard labor.
"All of these trials elicited compelling descriptions of water torture from its victims, and resulted in severe punishment for its perpetrators," writes Evan Wallach in the Columbia Journal of Transnational Law.
On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier.
Cases of waterboarding have occurred on U.S. soil, as well. In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.
Posted by: San Miguel | November 6, 2007 11:10 AM
The Democrats are wothless.
Waterboarding is torture. American law has classified it as torture for over 100 years.
This guy should be dead in the water.
Posted by: nisleib | November 6, 2007 11:13 AM
Someone has to find out which legislative aides provide the Code Pink duhfusses with passes to get into Senate hearings. Ever try to get into a Senate hearing? If you don't have a pass, a humongous security guard all but tosses you out the door. If Code Pink screwballs can get in, so can someone intent on bodily harm.
Posted by: Georgina | November 6, 2007 11:18 AM
Isn't strange how the Democrats get so upset over non-lethal waterboarding for our enemies but uttered hardly a word about the sawing-off of the heads of Daniel Pearl and captured American soldiers by the Islamic terrorists in Iraq.
Posted by: Angelo | November 6, 2007 11:22 AM
A good day for mankind. A bad day for the Left.
Posted by: John D | November 6, 2007 11:26 AM
Senator Schumer will do a little more "homework" before he forcefully pushes any more appointees. Always good to await the hearings. Clearly there are CIA officers who will blow the whistle big time if waterboarding is officially declared torture because they were lead down the primrose path by Bush, Cheney and Rumsfeld and are now in jeopardy. Bush is clearly frightened by the prospects of such a disclosure.
Posted by: FER | November 6, 2007 11:27 AM
get so upset over non-lethal waterboarding for our enemies but uttered hardly a word about the sawing-off of the heads of Daniel Pearl and captured American soldiers by the Islamic terrorists in Iraq.
Posted by: Angelo | November 6, 2007 11:22 AM
What kind of weak dribble is this? Maybe you didn't hear the outrage at that act with those partisan ears you wear.
Posted by: bill r. | November 6, 2007 11:29 AM
Waterboarding is still torture. Thanks for approving a loser! Michael Mukasey a guy who won't even give a straight answer but is now the AG.
Freedom of speech, just watch what you say!!!
Posted by: Alberto G | November 6, 2007 11:30 AM
Angelo;
And the Republicans said?
Posted by: San Miguel | November 6, 2007 11:30 AM
Hey, what do ya' know. My Waterboading, Inc. stock just went up!
Posted by: Decider Guy | November 6, 2007 11:52 AM
A good day for mankind. A bad day for the Left.
Posted by: John D | November 6, 2007 11:26 AM
John D thinks torure is good for mankind. How twisted is that?
John are slavery and genocide good for manking too?
Posted by: AJF | November 6, 2007 12:05 PM
Wow, I never knew torture was a Republican value. Is it part of the family values the GOP cares so much about?
Torture is un-American. Since the GOP loves torture so much the obvious conclusion is that the GOP is also un-American.
Why don't all you right wingers move to Iran? They love torture over there.
Posted by: nisleib | November 6, 2007 12:22 PM
The reaction of the left was predictable: knee-jerk, caterwauling, and wetting one's pants. For a change, a good vote cast by Feinstein and Schumer. Kennedy almost had a stroke invoking his usual claptrap!
Posted by: Willig | November 6, 2007 12:25 PM
It's ironic that Ted Kennedy gave such a descriptive view of water boarding and drowning. His experience on Chappaquiddic must have given him such expertise.
Posted by: willig6 | November 6, 2007 12:31 PM
I just can't accept Schumer's claimes that Mukasey passes muster because of assurances that he would enforce any torture procedure that Congress specifically makes illegal, when waterboarding clearly falls under our already established general legal prohibitions against torture. It sounds like semantic parsing to me.
It isn't a stretch to imagine the Bush administration taking broad latitude with this loophole, and using slight differences in the torture procedures themselves and the terminology used to describe them in order to evade any specific prohibition.
Posted by: Wordie | November 6, 2007 12:35 PM
I will bet whats left in my trick or treat bag that this congress will have Mukasey in front of them again within 60 days of his Senate approval...
Posted by: heartburn | November 6, 2007 12:42 PM
The Dem who wins the upcoming Prez election will immediately clean house of all Bush appointees. Continuity will be the last thing the winner wants. I only hope they'll clean house at the Pentagon--all those right-wing Christians generals and colonels and admirals and captains need to GO. I'd go to Mikey Weinstein and ask for a list of names. Ditto the people Bush put in after he fired all the prosecutors. I would keep Fitzgerald though.
Presidents do clean sweeps for a reason--they want staffers and appointees who agree with their philosophy. Mukasey is forever tainted by not giving a clear answer on waterboarding, and will have to go. Keeping him is giving tacit approval to torture as an acceptable tactic.
Posted by: John E | November 6, 2007 1:09 PM
Torture works. John McCain was tortured. Therefore John McCain should not be allowed to be President because he gave North Vietnam classified information. That makes him a traitor.
Posted by: tortured logic Republican | November 6, 2007 1:22 PM
Congratulations to the Neocons:
Bush has given every Gov. in the world an excuse to use torture on anyone it pleases. This may be one of the worst problems it has caused. Anyone can now say that if the USA does it, there is no reason why they shouldn't. This means not only will it be used on our own soldiers but everyone else is now subject to the methods put in place by Rumsfeld, Cheney and Bush.
"We all have to be concerned about terrorism, but you will never end terrorism by terrorizing others"
~Martin Luther King III
Posted by: John E | November 6, 2007 1:22 PM
Willig:
Figures some Repug would bring that up.
But since I bet John McCain went through something like that, he would be more of an expert than you.
And he, Graham, and Warner, all veterans, have said that waterboarding is torture.
Posted by: BobinATL | November 6, 2007 2:25 PM
As I look at the photo of the Sens. on the Judiciary Committee, the thought that comes to mind is that it's time to put all of these dinosaurs out to pasture.
We need some fresh people and ideas in DC - I say vote every incumbent out in '08.
Posted by: Radian | November 6, 2007 2:27 PM
What a bad, bad day it is for the Kooks on the Left. The Dems say no impeachment proceedings will happen for Cheney and Bush and the Mukasey received the approval of the Senate Judiciary Committee.
It's always a good day when the Left doesn't get what it wants. It's like torture!!! Today is a special, gleeful day.
Posted by: John D | November 6, 2007 2:31 PM
Well, it's now official - Johnny D. likes torture!! Are you volunteering to be waterboarded?
Want real torture Johnny? Mark the date November 4, 2008 on your calendar. You and the rest of the rightwing nut jobs will find out what torture is when we finally get the Repubicans out of the White House!!!
Posted by: BobinATL | November 6, 2007 3:02 PM
It's always a good day when the Left doesn't get what it wants. It's like torture!!! Today is a special, gleeful day.
Posted by: John D | November 6, 2007 2:31 PM
Leave it to Crazy Johnny Devola to be happy that his leaders have approved of the use torture.
Someone should ask Rudy Ghouliani if Abner Louima knew about a 'ticking time bomb' when the NYPD shoved a plunger handle up his butt? (NO, he didn't).
This is just another reason among many of why this nut (Rudy) should never become the President.
Posted by: John E | November 6, 2007 3:07 PM
What is all the fuss over a technique that has been used on THREE terrorists according to ABC NEws?
http://malor.wordpress.com/2007/11/02/only-three-terrorists-have-been-waterboarded/
It is an extraordinary measure used to save numbers of US lives.
Reminds me of a decision the Truman had to make when using the atomic bomb. Do we kill 100,000+ japanese civilians with the use of the the biggest WMD or send in American troops and have maybe a million or so killed (not counting Japanese soliders)? The math is easy. And so is the case for waterboarding. It is better than most torture because it is quicker and causes less permanent damage, if any.
Posted by: Terry | November 6, 2007 4:09 PM
Code Pink people look weird in their display. This is a rent a mob group that shows up for global warming, pro abortion rallies, and all Bush attacks.
Don't you wonder what these socialists do for a living. Probably they are paid with Soros and Clinton money. Jerry White, Springfield, IL P.S. Judge Mukasey will do a good job but don't look for praise from the drivebys. Praise from them is only aimed at Jackasses.
Posted by: Jerry White | November 6, 2007 4:40 PM
Bobin, barring a complete collapse in the U.S. economy, the Republican will become president and the GOP may retake the House. The Senate may be another issue, mainly because of the number of GOP senators up for re-election compared to the number of Dems, as well as the number of retiring GOP senators.
But we'll see, Bobin, won't we?
Posted by: John D | November 6, 2007 4:59 PM
Do the Democrats have a party or is it just a group of do it yourself polititians? Is someone leading this group. What does it stand for. Is there any issue that they can commit to and stand together in support of?
Why would a sane public let such an unprincipled group be in charge of Congress?
Can a party without conviction win a workable majority in Congress. I doubt it.
Posted by: c. perry | November 6, 2007 4:59 PM
I guess they all need to turn up their hearing aids so they can hear what the American people are saying.
Posted by: lochnessmonster | November 6, 2007 5:12 PM
"GOP KILLS MUKASEY BID IN THE SENATE"
YEA, DENNIS KUCINCH'S IMPEACHMENT OF DICK CHENEY PASSED THE HOUSE!
BUSH DECLARES UNITED STATES HOUSE ON TERRORIST HOT LIST. THOSE DAMN EVIL DOERS, DAMN TRAITORS HOW DARE THEY IMPEACH MY MAN!
MUSHARIF STOLE BUSH/CHENEY/RICE/ADDINGTON/CHERTOF THUNDER BY DOING WHAT THEY WANTED TO DO FIRST.
NOW HE CAN'T SELL THE MEXICANS ARE COMING, THE MEXICANS ARE COMING TO AMERICA ANYMORE.
LONG LIVE NANCY PELOSI!
Posted by: Roger Morris | November 6, 2007 5:20 PM
We have sort of a helpless legislature here in Florida.It is solid Republican but can give some instruction to the Democrats in our Congress. Save confusion, let lobbyists write all legislation. Find challenges you can handle. We have successfully outlawed dwarf tossing. You could probably do this on the national level. Lots of states have ignored the threat of ribald bumper stickers. Not Florida. We jumped right in and outlawed them.
Since being a Democrat in Congress means not having to stand for anything you should dig up a lot of unimportant issues to keep busy. Turkey killed a lot of Armenians back in 1915. You could start there.
Posted by: c. perry | November 6, 2007 7:40 PM
Terry,
You keep making an assumption that a) the tortured knows of an impending plot and b) the tortured will tell the truth. Why do you do this? Did you ever take classes in an academic setting higher than high school?
Posted by: jethro | November 7, 2007 1:38 PM
It doesn't really matter what the AG thinks about torture. We outsource the real torture to other countries.
http://blogs.abcnews.com/theblotter/2007/11/cia-rendition-t.html
Not only is this war based on lies. It is based on lies coerced by torture that the US was complicit in.
Terry and John D, you'll probably want to be alone when you read the link. The description of the torture involved will get you pretty excited. You'll need some private time.
Posted by: AJF | November 7, 2007 3:04 PM
Jethro,
About six years to answer your assinine question.
I didn't say to use it on every islamic terrorist that is detained.
Our naval aviators are subjected to waterboarding in their SERE training.
AJF,
Rap music, that is worse than waterboarding.
Seemed to have worked on Khalid Sheik
Should have waterboarded him and he might have told the truth.
Posted by: Terry | November 7, 2007 7:55 PM