Mukasey's painstaking approach to waterboarding

by James Oliphant

Atty. Gen. Michael Mukasey continued Wednesday to hedge on the legality of the interrogation technique known as waterboarding, frustrating some members of the Senate Judiciary Committee.

Mukasey was appearing before the committee for the first time since it voted to confirm him as Alberto Gonzales’s successor in November.

During that confirmation hearing, Mukasey jeopardized his nomination by refusing to brand waterboarding as illegal torture. But he promised to research the issue once confirmed and report back to the Senate.

But prior to his testimony Wednesday, Mukasey sent a letter to Judiciary chairman Patrick Leahy of Vermont, telling him that because waterboarding currently isn’t authorized for use by Central Intelligence Agency operatives, he could not opine on its legality. (The CIA has, according to the administration, used the technique in the past on suspected terrorists.)

“I do not believe that it is advisable to address difficult legal questions about which reasonable minds can and do differ, in the absence of concrete facts and circumstances,” Mukasey said in the letter.

He echoed those words before the committee, angering several members. “It’s like saying you’re opposed to stealing but not saying whether bank robbery would qualify,” said Sen. Edward Kennedy of Massachusetts.

“Would waterboarding be torture if it was used on you?” Kennedy asked him.

“I would feel that it was,” Mukasey replied.

But like the cool and collected federal judge he was for almost 20 years, Mukasey refused to take the bait. He restated several times that he wouldn’t draw lines as to when the technique may or may not be legal, even as pressed by senators such Joseph Biden of Delaware, who accused the attorney general of saying that torture was simply a relative matter.

“You’re the first person I’ve ever heard say this,” Biden said.

Mukasey reiterated his belief that under federal law, a balance needed to be struck between the heinous nature of the interrogation practice and the type of information that needed to be obtained.

“This is an issue that people of equal intelligence, equal good faith, with equal vehemence, disagree,” he said.

Nor would Mukasey commit to Sen. Chuck Schumer of New York to advise the president to prohibit waterboarding altogether, despite his belief that the practice is “repugnant.”

“You have a chance to be a leader,” Schumer implored.

The attorney general also addressed legislation pending in Congress to permanently amend the Foreign Intelligence Surveillance Act, repeating his call for the Senate to provide immunity from civil suits to telecom companies for allegedly cooperating with the National Security Agency’s warrantless wiretapping program. That bill will be taken up again next month.