Mukasey Withholds Opinion on Waterboarding

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Michael Mukasey's confirmation hearings for attorney general turn testy as the nominee refuses to say whether he considers waterboarding, a harsh interrogation technique allowed by the Bush administration, to be torture.


In this country, hearings for President Bush's nominee for attorney general became a forum to question techniques on the war on terror. Michael Mukasey received a warm welcome at first, and then he declined to say if he considers an interrogation technique called water boarding to be torture.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: On day one of his confirmation hearing, Mukasey soothed suspicious senators by declaring that in his view the Constitution prohibits torture. But yesterday, when the committee's Democrats pressed for a definition of torture, Mukasey demurred, saying that the comment would be irresponsible and put in legal jeopardy, quote, "people who are being authorized to use coercive techniques."

Senator Richard Durbin asked about specific techniques like water boarding; that is, simulated drowning. He noted that the judge advocates general of all the military services have testified that this and other practices permitted by the Bush administration are illegal under the Geneva Conventions.

Mukasey responded this way.

Mr. MICHAEL MUKASEY (U.S. Attorney General Nominee): This is not a matter of choosing pleasant alternatives. It's a choice among bad alternatives. What the experience is of people in the Judge Advocate General's Corps has been with captured soldiers, captured military people from enemies we've fought in the past may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person.

TOTENBERG: Senator Durbin noted that the Geneva Convention bars torture not just for soldiers but for everyone - military and civilian. Water boarding, initiated in the Spanish Inquisition, has long been viewed as a war crime in the U.S., Durbin observed, noting that as far back as 1901 an American soldier was prosecuted for using the practice against a Philippine insurgent. Even without preface, though, nominee Mukasey would not commit himself.

That prompted this exchange with Senator Sheldon Whitehouse.

Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): So is water boarding constitutional?

Mr. MUKASEY: If water boarding is torture, torture is not constitutional.

Sen. WHITEHOUSE: That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion?

Mr. MUKASEY: If it amounts to torture, it is not constitutional.

Sen. WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.

TOTENBERG: Torture was just one of the many questions involving executive power in which Mukasey's view seemed to reflect President Bush's. If confirmed, would Mukasey allow the Justice Department to enforce a contempt citation against administration officials? Basically, the answer was no. Would he support the president's claim of executive privilege, the president's refusal to provide information even when communications with the president are not involved? Basically the answer was yes.

Is the president acting legally when he allows wiretapping without a warrant, despite the fact that Congress passed specific legislation barring surveillance in the U.S. without a warrant? Mukasey responded that Congress cannot under the Constitution act to trump the president's power as commander in chief.

Committee Chairman Patrick Leahy followed up, asking what the limits are to the president's wartime powers.

Senator PATRICK LEAHY (Democrat, Vermont): Can a president put somebody above the law by authorizing illegal conduct?

Mr. MUKASEY: If by illegal you mean contrary to a statute but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.

TOTENBERG: All the Democrats who showed up yesterday said they found that view, in their words, deeply troubling. But no senator said he would vote against Mukasey. No one disputes a confirmation is just around the corner. The unanswered question is what degree of rejuvenation and independence Mukasey will be able to bring to a severely maimed Justice Department in the remaining 15 months of this administration.

Nina Totenberg, NPR News, Washington.

INSKEEP: You can listen to a lot more of these hearings and decide for yourself, if you like. All you have to do is download a one hour NPR News special with analysis on yesterday's hearing on the nomination of Michael Mukasey. All you do is go to npr.org.

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Mukasey Dodges Question on Torture Techniques

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Mukasey Profile

The career of Michael Mukasey, President Bush's pick to succeed Alberto Gonzales as attorney general, is inextricably tied to national security. Read a profile of the judge.

If senators had been hoping that President Bush's nominee for attorney general would close the door on using harsh interrogation techniques on terrorism suspects, they were disappointed by the answers provided by retired federal judge and attorney general-designate Michael Mukasey.

When Sen. Sheldon Whitehouse (D-RI) asked directly whether Mukasey thought a technique that simulates drowning, known as waterboarding, is constitutional, the nominee was equivocal. He danced around the issue of whether waterboarding actually is torture and stopped short of saying that it is.

"If it amounts to torture," Mukasey said carefully, "then it is not constitutional."

Whitehouse said the answer amounted to pure semantics.

"I am very disappointed in that answer," Whitehouse said.

"Sorry," Mukasey responded quietly.

The waterboarding question comes in response to an executive order that President Bush issued this summer that permitted the use of some harsh interrogation techniques. The order stopped short of listing them; the administration has refused to say whether waterboarding was on the list. Congress has banned waterboarding in a detainee treatment law.

Senate Democratic Whip Dick Durbin (D-IL), asked Mukasey if he could shed some light on the matter.

"I'm hoping that you can at least look at this one technique and say, 'That clearly constitutes torture. It should not be the policy of the United States to engage in waterboarding,'"

Mukasey dodged.

"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," he said. When asked about it again by Senate Judiciary Chairman Patrick Leahy of Vermont, Mukasey allowed that if waterboarding were actually defined as torture, then it could not be permitted by the president.

"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.

Senators also sought to pin down Mukasey about his views on executive authority. They asked when, if ever, the president should be permitted to override laws that Congress has passed. Mukasey, again, equivocated.

"We are not dealing here with black and white," he said. "Which is why it's very important that push not come to shove, because the result could be not just divisive but disaster."

Lawmakers focused in particular on wiretapping — and when the president could skirt a special Foreign Intelligence Surveillance Act court and order wiretaps on his own. Mukasey said that when the president had the choice of staying within the prescriptions of the FISA law, he ought to.

Mukasey spoke more directly about legislation now under consideration that would shield journalists from having to reveal their sources. The so-called shield law would establish standards that would limit the power of federal authorities to force reporters to testify or disclose documents or sources they have used in their reporting.

There has been a groundswell of support for the law in the wake of a case in which a covert CIA operative, Valerie Plame, was outed two years ago. A court demanded to know the source of the leak; Judith Miller, who was then a reporter with The New York Times, ended up going to jail for 85 days for refusing to disclose who gave her the story.

Mukasey said the shield law wasn't necessary. "The system has worked passably well up until now," he told the committee.

He said that the problems with protecting journalists could be remedied by tinkering at the edges of procedures at the Justice Department. "You can adjust the regulation, you can adjust the procedure, you can put more levels in," he said. "It becomes much harder when it's etched in stone in the form of legislation. And that is part of the reason for my unease."

President Bush has said he would veto the shield law. The administration's argument is that subpoenas for reporters are relatively rare, and a shield law would make it hard to track down people who leaked classified information. Mukasey said the legislation, as written, sets too high a legal threshold for prosecutors to meet. They will have to prove that the disclosure is needed to prevent an attack, and that is difficult to do or prove.

Sen. Arlen Specter (R-PA) supports the shield law. He asked Mukasey to list his specific objections in writing and submit them to the committee. Mukasey agreed to do so.



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