Image: Michael Mukasey
Stefan Zaklin  /  EPA
Attorney general nominee Michael Mukasey testifies before the Senate Judiciary Committee on Oct. 18. He is expected to be approved without significant objection.
updated 10/30/2007 7:49:53 PM ET 2007-10-30T23:49:53

President Bush’s nominee for attorney general told the Senate Judiciary Committee on Tuesday that he does not know whether it is legal for interrogators to use waterboarding, a technique that simulates drowning.

In an effort to satisfy senators from both parties who question his views on terrorism-related matters, Michael Mukasey pledged to study the waterboarding issue. He called the technique “repugnant to me.”

“If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique,” Mukasey wrote to the committee’s 10 Democrats.

Elsewhere in the letter, Mukasey said that he did not know if the technique is still being used by U.S. personnel because he is not yet cleared to receive such classified information. Still, he pledged to stand up to Bush if necessary and to seek ways to protect the nation from terrorism.

“I would leave office sooner than participate in a violation of law,” Mukasey wrote.

Confirmation expected
Both parties widely expect more than 70 senators to vote for confirmation on the Senate floor. But first the Judiciary Committee must consider the nomination, and no date has been set for a vote.

Before Mukasey sent his letter, Democrats and a few Republicans had said they were concerned about his refusal to say whether waterboarding is illegal. Some senators also focused on a Mukasey comment that appeared to indicate he believes that the president in some circumstances is not constrained by the law.

“I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States,” said committee Chairman Patrick Leahy, D-Vt., who said Mukasey still owes the panel answers to other questions.

Leahy, who was one of several Democrats who said their votes depend on Mukasey’s answer on torture, did not say whether he would support confirmation.

Presidential hopefuls oppose nominee
Other senators, particularly those Democrats running for president, had made up their minds. Front-runner Hillary Rodham Clinton, D-N.Y., stuck with her opposition to his nomination, issued even before Mukasey had released his letter.

“We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law,” she said.

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Her chief rival for the nomination, Sen. Barack Obama, D-Ill., also criticized Mukasey.

“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. And we don’t need another attorney general who looks the other way on issues as profound as torture,” Obama said.

Sen. Joe Biden, D-Del., said he remains “very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States.” Another presidential hopeful, Sen. Chris Dodd, D-Conn., also has said he would vote against confirmation.

Letter expected to boost support
On the Republican side, Sen. Lindsey Graham of South Carolina said Mukasey’s letter left him less concerned about voting for confirmation but wanted to raise a few more issues with Mukasey in private.

“I’m favorably inclined to support him,” Graham said in a telephone interview. “I think he did himself a lot of good.”

Mukasey’s letter was expected to boost support for his confirmation, which in the last week had shifted from nearly unanimous to troubled.

In his four-page letter, Mukasey said he would try to balance constitutionality with “our shared obligation to ensure that our nation has the tools it needs, within the law, to protect the American people.” But he declined to take a stand on waterboarding because, he said, the question is hypothetical.

It’s not known, Mukasey said, whether waterboarding or any other specific harsh interrogation technique is being used, or in what circumstances.

“Legal opinions should treat real issues,” Mukasey wrote.

“I have not been briefed on techniques used in any classified interrogation program conducted by any government agency,” he added. “For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees.”

Uncertainty in Congress legislation
Waterboarding cannot be used by the military under the Army field manual and a 2005 law on detainee treatment. But Congress has not passed additional legislation banning certain harsh interrogation techniques in all circumstances, Mukasey noted, and he also placed some onus for the uncertainty on Congress.

Mukasey said that after being briefed on current practices as attorney general, he would evaluate whether they would violate the Constitution or U.S. or international law.

Specifically, he said, he would decide whether a technique is torture based on two factors in the U.S. criminal code: whether it was intended to cause severe physical pain or suffering or prolonged mental harm.

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