Attorney General-nominee Michael Mukasey's responses to questions on the constitutionality of torture tactics troubled some Democratic senators during his confirmation hearings and have slowed the next steps in his nomination. Two members of the Senate Judiciary panel discuss Mukasey's bid.
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Now, the president's attorney general pick and a definition of torture. Ray Suarez has the story.
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?
If it amounts to torture, it is not constitutional.
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?
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.