"Dems hit out at Mukasey’s torture pledge"

The Hill:

Senate Democrats on Tuesday pilloried Attorney General-nominee Michael Mukasey for his assurances to Sen. Charles Schumer (D-N.Y.) that he would enforce a law to prohibit waterboarding if Congress were to enact such a measure.

That assurance was critical to Mukasey because Schumer’s approval helped ensure his nomination would sail through the Senate Judiciary Committee on Tuesday. In an 11-8 vote, the committee approved Mukasey’s nomination, with Schumer and Sen. Dianne Feinstein (D-Calif.) siding with all nine Judiciary Committee Republicans.

Majority Whip Dick Durbin (D-Ill.), who sits on the Judiciary Committee and voted against the nomination, said he has been “troubled . . . since the first time [Schumer] mentioned it to me to think that it’s our responsibility to pass a new law if we want waterboarding to be considered torture.”

He insisted a bill to outlaw waterboarding was unnecessary and would not move through the 110th Congress. “I think we’re setting ourselves up for the argument, ‘Man, if we had just done our job and passed a law [then] Michael Mukasey might have understood that waterboarding – which has been torture for 500 years – is still torture,’” Durbin said.

Other Democrats also did not hide their concerns with Mukasey’s statements to Schumer. Judiciary Committee Chairman Patrick Leahy called the argument a “red herring.”

The Vermont Democrat said his panel would not take up such a bill because it would open up new questions on whether interrogators can employ other techniques that could be construed as torture, such as electrocution or pulling out a detainee’s fingernails.

Senate Majority Leader Harry Reid (D-Nev.), who opposes the nominee, did not rule out requiring Mukasey to secure 60 votes to be confirmed to the post as early as next week.

“If we ban waterboarding, do we next have to ban thumb screws?” Reid told reporters Tuesday. “Or next do we have to ban whatever other sordid torture you can come up with?”

Sen. Edward Kennedy (D-Mass.) called Mukasey’s assurances “perhaps the most stunning and hollow promise reportedly made by a nominee for attorney general in my 45 years in the Senate.”

“We are supposed to find comfort in the representation by a nominee to the highest law enforcement office in the country that he will, in fact, enforce the laws that we pass in the future? Can our standards really have sunk so low?” said Kennedy, who has authored a measure that would outlaw waterboarding.

Schumer, after the vote, downplayed how much weight he placed on Mukasey’s assurances on waterboarding, and insisted he voted for Mukasey because he would “clean up the Justice Department.”

Without Mukasey, Schumer suggested, Justice would be left with a caretaker attorney general given President Bush’s suggestion that he would keep an acting replacement at the head of the Justice Department if Mukasey does not get confirmed.

Schumer added: “Even if you don’t pass a law [on waterboarding], we have a better chance doing well on torture with Mukasey than with an acting [attorney general] who will be picked by” Vice President Cheney and Cheney Chief of Staff David Addington.

Mukasey’s confirmation had been in doubt because of Democrats’ concerns that the nominee had refused to declare that the interrogation tactic known as waterboarding constitutes illegal torture under U.S. laws. Mukasey said he had not been briefed on the specifics of U.S. interrogation techniques, including waterboarding, which simulates drowning, and could not explicitly say whether they were illegal.

But he told Schumer in a private meeting Friday that if Congress were to enact a new law on waterboarding, the president would have no legal authority under the Constitution to ignore it.

“The judge made clear to me that, were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority,” Schumer said in his statement supporting Mukasey, issued shortly after his meeting with the former district judge. “He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.”

Republicans note that there is some vagueness about whether waterboarding can be construed as torture, an issue that they say has become more convoluted since the 2001 resolution authorizing military force against Afghanistan.

They also point to an amendment equating waterboarding with torture that was rejected during the debate over the Detainee Treatment Act, which was enacted last Congress.

Such a law, though, already exists and has been prosecuted by military courts since the Spanish-American war, Democrats said Tuesday. They argue that in addition to the Senate-ratified Convention Against Torture and the Geneva Conventions, several other laws such as the federal Anti-Torture Act and War Crimes Act, prohibit cruel and degrading treatments of prisoners.

The other Democratic defector, Feinstein, said she had “not made a decision” on backing a potential new law on waterboarding.

“Every day you can’t bring up a new act of torture and say is this or is that not part of the Geneva Conventions or the Conventions Against Torture,” Feinstein said, pointing out that both human rights groups and interrogators want to retain the vagueness in the law. “I think if the issue is waterboarding, you take care of it. You say it’s off clearly for CIA.”

At the Judiciary Committee meeting, Feinstein said Mukasey’s position on waterboarding should not disqualify him for the job, arguing that he would represent an independent choice and fix the problems created by the previous attorney general, Alberto Gonzales.

“Mukasey has followed an independent path, he has stood on his own, he has litigated on his own, he has judged on his own,” Feinstein said. “Mukasey in my view is going to be a very different attorney general.”

“Shame on you, senator! Shame on you! I’m from California!” a protester yelled at Feinstein after her statement; he was escorted out of the committee room.