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Torture Tactic Questions Dominate Mukasey Confirmation

October 31, 2007 at 6:10 PM EDT

JUDY WOODRUFF: Now, the president’s attorney general pick and a definition of torture. Ray Suarez has the story.

RAY SUAREZ: Retired federal judge Michael Mukasey appeared headed for easy Senate approval following the first day of his confirmation hearing two weeks ago. But on day two, Sheldon Whitehouse of Rhode Island was one of several Judiciary Committee Democrats who pressed Mukasey on the constitutionality of torture, waterboarding specifically.

SEN. SHELDON WHITEHOUSE (D), Rhode Island: So is waterboarding constitutional?

MICHAEL MUKASEY, U.S. Attorney General-Designate: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE: If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning, is that constitutional?

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

RAY SUAREZ: These photos of a waterboard and an illustration of the practice are from a museum documenting the atrocities of the Khmer Rouge that ruled Cambodia in the 1970s. The technique dates back to the Spanish Inquisition, but it’s now banned by international conventions against torture and by the U.S. military, as well.

However, it’s been reported the CIA has used waterboarding in carrying out the Bush administration’s war on terror. Khalid Sheikh Mohammed, the lead planner of the September 11th attacks, was allegedly subjected to it. Now waterboarding appears to be the main obstacle standing between Michael Mukasey and his confirmation as attorney general.

Last week, Judiciary Committee Democrats sent Mukasey a letter reiterating that they were “deeply troubled by your refusal to state unequivocally whether waterboarding is illegal.”

In reply yesterday, Mukasey wrote, “These techniques seem over the line, but hypotheticals are different from real life. And in any legal opinion, the actual facts and circumstances are critical.”

That did not satisfy committee Democrats, nor the ranking Republican, Arlen Specter. Also troubling committee members was Mukasey’s confirmation hearing response to a question about the scope of executive power.

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

MICHAEL 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. Can the president put somebody above the law? No.

SEN. PATRICK LEAHY: I’m troubled by your answer. I see a loophole big enough to drive a truck through.

Delaying Mukasey's confirmation

Lindsey Graham
(R) South Carolina
And I think Judge Mukasey as a man is exactly who we would want to be in this job. When he said the technique was repugnant to him personally, it made me feel better.

RAY SUAREZ: It's now unclear whether Mukasey has the 10 committee votes needed for his nomination to be sent to the full Senate. The committee will vote next Tuesday.

And we're joined by two members of the Senate Judiciary Committee, Democrat Sheldon Whitehouse of Rhode Island, and Republican Lindsey Graham of South Carolina.

And, gentlemen, just in the past hour, Majority Whip Senator Dick Durbin of Illinois came out and said he would be a no vote, along with, Senator Whitehouse, you yourself saying you would vote in the negative. Are the prospects for Judge Mukasey's successfully getting through committee now dimming?

SEN. SHELDON WHITEHOUSE (D), Rhode Island: Well, it's certainly going to be a lot closer than it looked like at the end of the first day of his hearings.

RAY SUAREZ: And how will we know whether or not this can leave the committee in any form? If he's not approved, is there a manner in which it can be sent to the full floor for a vote anyway?

SEN. SHELDON WHITEHOUSE: I think, from time to time, nominees come out of committee without a formal recommendation and people are more willing to vote for that than full up-or-down. I think that's an unusual procedure. I have no indication whatsoever that the chairman would entertain it in this instance.

I think it's hypothetically true, but I think at this point a lot of people are doing a lot of soul searching about this nomination. And I think it's a long way from being clear in a lot of people's hearts where they're going to come down on this. It was very difficult for me to make this choice.

RAY SUAREZ: Senator Graham, were you satisfied by the response of Judge Mukasey to the questions from committee members?

SEN. LINDSEY GRAHAM (R), South Carolina: Yes, it made me feel better in this regard: I believe, without any doubt, that waterboarding is illegal. It's a violation of the Geneva Convention. It's a violation of the War Crimes Act. It's a violation of the Detainee Treatment Act, in my opinion, because I'm familiar with the practice.

But at the end of the day, I'm not asking to be the attorney general, and my words will not have the effect of his. And I think what Sheldon asked is a result of a legacy of cutting corners and pushing the envelope.

You've got a suspicious Congress, I guess. And a lot of us are very worried that we need to start over again and clean up the problems of the past.

And I think Judge Mukasey as a man is exactly who we would want to be in this job. When he said the technique was repugnant to him personally, it made me feel better. And in the letter, he said that, when I evaluate a technique against the law, I accept the fact that the Congress and the courts can bind the executive. That made me feel much better, that he doesn't accept this inherent authority argument that you can waive a statute or a Supreme Court decision simply because we're at war.

So, yes, I'm very inclined to support him, but I understand the suspicion. We've had three years of pushing the envelope. And I would like to see him get through, because I think he would do a good job. He has a lot of bipartisan support. And all who have been in front of him as a judge feel like he's a fair man, but these are tough, difficult times, and I understand people's concerns.

Room for outlawing waterboarding

Sen. Sheldon Whitehouse
(D) Rhode Island
There's no doubt in our minds that his testimony has been scrubbed by the White House, and by the vice president, and by a whole lot of interested folks. And wherever I see a loophole, it makes me very, very concerned.

RAY SUAREZ: Senator Whitehouse, you heard your Senate colleague just take some comfort in the fact that Judge Mukasey called the activity of waterboarding repugnant personally, but in his response to the Senate, did he also leave a lot of room for not outlawing it?

SEN. SHELDON WHITEHOUSE: He absolutely did leave a lot of room. And, unfortunately, as Lindsey just said, we have seen from the Bush administration a recurring pattern of, if you leave them just the tiniest little hairline glimmer of daylight, they will try to sneak an entire program through it.

And they use very aggressive legal theories, in which basically, if you're the commander-in-chief and it's a time of war, which they say this now is, and the activity relates to national security, Congress's legislation simply doesn't matter and the commander-in-chief can do as he pleases.

That from a position of the history of our country, and the importance of separated powers, and the checks and balances on how government is supposed to run is a really dangerous proposition. And I think Lindsey is dead right. I think we in Congress are very much on our guard about that.

And so I think very close scrutiny is being paid when Judge Mukasey leaves these windows open. There's no doubt in our minds that his testimony has been scrubbed by the White House, and by the vice president, and by a whole lot of interested folks. And wherever I see a loophole, it makes me very, very concerned.

RAY SUAREZ: Senator Graham, in his reply to the Senate, didn't Judge Mukasey also throw this question back in the laps of Congress, by noting that it wasn't barred outright and in all circumstances the last time waterboarding came before your body?

SEN. LINDSEY GRAHAM: Well, the Congress has voted -- had an opportunity to outlaw waterboarding for every agency of the government, and we chose to limit outlawing waterboarding to the Department of Defense.

The reason I didn't want to list all the things that you can't do when you interrogate somebody is that I don't think that's the way you legislate. What you do legislatively is you bar conduct. You prevent people from being mentally and severely physically harmed. You pass statutes to protect people from being maimed, and disfigured, and harmed. You don't outlaw every conceivable technique.

As to Judge Mukasey, he answered a question that I posed to him in a very satisfying way to me. I asked him very directly: Could the president's inherent authority avoid compliance with the McCain language prohibiting cruel, inhumane and degrading treatment of a detainee? And he said no.

I asked him: Could the president waive Geneva Convention rules applying to the detainee treatment? And he said no. So I think he's rejected this argument that Sheldon mentioned that some people in the administration has posed.

And his dilemma is, if he answers this hypothetical and makes a legal ruling basically from the table there that he doesn't have all the facts and circumstances, and there may be real people in real circumstances that are affected by his answer, so I understand that. I wish he'd have been more direct.

But I think he understands this is a repugnant practice. I think he understands that inherent authority doesn't trump the Congress or the Supreme Court and that he's a mainstream legal thinker. And that's what I'm looking for, a good person who's a mainstream legal thinker.

And I hope we can get him through at the end of the day, because he is a consensus choice. The president could have went down a different road, but by picking Judge Mukasey, he was trying to bring us together.

Chances of rejecting Mukasey

Sen. Sheldon Whitehouse
(D) Rhode Island
It is really this torture question and what it means to our country, what it means to our reputation in the world, what it means to the way we're viewed and how our principles are held that has driven me here.

RAY SUAREZ: Well, do you think, Senator, that questions over torture techniques are enough, are sufficient alone to reject this nominee?

SEN. LINDSEY GRAHAM: One thing about my colleague to the right here, he's about as sincere a guy as I've met in the Senate. And each senator is going to have to answer these questions.

I know it's illegal. I don't have any doubt. But I'm not going to be the attorney general of the United States, and I'm not going to pass judgment on what people may have done. I'm not the chief law enforcement officer of the land. And the fact that the judge wouldn't give a legal, binding answer to a hypothetical I can understand.

But I also can understand what Sheldon is going through here. I don't want to give an opening in an environment where people have taken advantage of it. If I thought Judge Mukasey was the type of person who would find corners, and cut corners, and try to avoid the spirit of the law, I wouldn't vote for him either, but I believe he's not that kind of man.

RAY SUAREZ: Well, Senator Whitehouse, your colleague, Senator Graham, this afternoon called on Judge Mukasey, once confirmed, to review the use of torture by American personnel. Is that not sufficient for you?

SEN. SHELDON WHITEHOUSE: No, it's not sufficient for me. This is a very difficult choice for me, because I agree with Lindsey that Judge Mukasey appears to be, in many respects, an absolutely fine man and a fine nominee. And certainly I think we all agree here that the Department of Justice is crying out for good leadership right now, and it's a national matter of significant imperative to put somebody there.

So when I say that I can't support this nominee, it is a very, very hard choice for me. But I think we are at a place in our country where this issue has been raised to the point where we have to tell the world a simple proposition: Americans don't torture.

And if we cavil on that, if we hedge it, if we try to legalize our way around it, we are sending a terrible message to the rest of the world. And if you, like me, believe that America's strength stands on our reputation, stands on our principles, stands on what we stand for, then this makes this a really, really important point. And I think that's why we are where we are.

RAY SUAREZ: Earlier, Senator Whitehouse, you heard your colleague sitting next to you call Judge Mukasey a mainstream legal scholar, a mainstream jurist. Looking back to the confirmation hearing and his answers concerning executive power, deference to the president, and the president's abilities to act in time of war, do you consider him a mainstream nominee?

SEN. SHELDON WHITEHOUSE: I would say he's boundary. On that point alone, I would never have opposed his nomination. I think he is on the far edge of responsible legal opinion on that subject, but within its bounds.

And I obviously disagree with him very strongly. And I think that that theory has created enormous mischief in our country, but I would not have opposed his nomination on those grounds.

It is really this torture question and what it means to our country, what it means to our reputation in the world, what it means to the way we're viewed and how our principles are held that has driven me here.

Comparing Mukasey to Gonzales

Sen. Lindsey Graham
(R) South Carolina
I do believe that [Mukasey] is a much more reasoned person, much more in the mainstream than some of the other people we've had up here.

RAY SUAREZ: Senator Graham, given the fact that so much of the controversy swirling around Attorney General Gonzales had to do with his ideas about executive authority, is there a lot of difference in what Judge Mukasey had to say during his confirmation?

SEN. LINDSEY GRAHAM: Night and day. I asked Attorney General Gonzales, could the Congress pass the Uniform Code of Military Justice regulating the land and naval and air forces regarding detainee treatment and not violate the president's inherent executive authority? And he says, "I'm not sure."

Well, that's ridiculous. The UCMJ has been in place for 50 years. I asked Judge Mukasey that very question, and he didn't hesitate a bit. He said certainly Congress can act in the area of regulating the conduct of the military vis-a-vis detainees.

This is an area where all the three branches have a role, and I don't blame the president to say, "I'm the executive, the commander-in-chief. I have responsibilities unique to my branch." But they've taken it too far. They've pushed this theory to the point that there was no place for the legislative or judicial branch.

I find in Judge Mukasey an understanding that there is a place for the judicial branch. It was the Supreme Court who said the Geneva Convention Common Article 3 applies to the war on terror. And when I asked Judge Mukasey, do you feel bound by that? He said, "Yes."

It was the Congress who passed the Detainee Treatment Act outlawing cruel, inhumane, degrading treatment called the McCain amendment. Do you feel bound by that? Could you waive that based on inherent authority argument? And he said, "No."

So I do believe that he is a much more reasoned person, much more in the mainstream than some of the other people we've had up here.

RAY SUAREZ: Senators Lindsey Graham of South Carolina and Sheldon Whitehouse of Rhode Island, gentlemen, thank you.