Thursday, November 1, 2007

Mukasey In Trouble

Retired Judge Michael Mukasey may not be the shoo-in that he was thought to be when he was first nominated to replace Alberto Gonzales.

Democratic support for attorney general nominee Michael B. Mukasey dwindled further yesterday over his refusal to comment on the legality of a harsh CIA interrogation technique, setting the stage for an unexpectedly close vote next week by the Senate Judiciary Committee.

Majority Whip Richard J. Durbin (Ill.) and Sen. Sheldon Whitehouse (R.I.) announced that they will join Sen. Joseph R. Biden Jr. (Del.) in voting against Mukasey on the Judiciary panel, after the nominee said in a four-page letter to Senate Democrats that he does not know whether a type of simulated drowning called waterboarding constitutes illegal torture under U.S. law.

Other Democrats on the Judiciary panel have pointedly refused to disclose how they will vote during a special meeting to consider Mukasey’s nomination, which has been scheduled for Tuesday. Chairman Patrick J. Leahy (D-Vt.) also declined to say whether he will allow the nomination go to the full Senate with a negative recommendation, which occurred with some past nominations.

White House officials said yesterday that they remain confident Mukasey will be confirmed, and Republicans again accused the Democrats of attempting to hold the nomination hostage to score political points. “No one is ready to declare it DOA,” White House spokeswoman Dana Perino said.

The nomination has become a particularly thorny problem for Mukasey’s original Senate patron, Charles E. Schumer (D-N.Y.). He had suggested Mukasey as a consensus nominee to the White House and declared two weeks ago that he should be confirmed, but he was noncommittal yesterday.

“I’m reading the letter, I’m going over it,” Schumer told reporters. “That’s all I’m going to say.”

It may not be just a simple matter of saying that waterboarding is torture, a seemingly easy distinction to make since it’s been outlawed by the Geneva convention and people have been tried as war criminals for doing it. But as Scott Shane points out in the New York Times, Mukasey is waffling because he may be called on to prosecute people in the CIA who did it…and the people up the chain of command who approved it.

Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.

Robert M. Chesney, of Wake Forest University School of Law, said Mr. Mukasey’s statements could influence the climate in which prosecution decisions are made.

“There is a culture of concern about where Monday-morning quarterbacking could lead to,” Mr. Chesney said. If Mr. Mukasey declared waterboarding illegal, “it would make it politically more possible to go after interrogators in the future,” he said. “Whether it would change the legal equities is far less clear.”

So let me see if I have this right: Mr. Mukasey isn’t saying definitively that waterboarding is torture and therefore illegal because if he’s confirmed as the attorney general, he would be compelled to prosecute the people inside the Bush administration who approved of it and the agents in the CIA who did the torturing.

But isn’t that kind of the point of having an attorney general; to enforce the laws and prosecute those who break them? What am I missing here?