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Mukasey Confirmation Becomes the ‘Waterboarding’ Hearing
by
findingDulcinea Staff
The opposition to Michael Mukasey’s nomination as attorney general leads his supporters to accuse Democrats of the self-interested politicizing of a controversial interrogation technique.
30-Second Summary
His nomination as attorney general looked like a sure thing for Judge Michael Mukasey until Oct. 18, the day he repeatedly declined to tell the judiciary committee whether waterboarding is torture. His demurral rapidly became the focus of the hearing.
On Oct. 30, Mukasey attempted to defuse the issue with a letter addressed to the 10 democratic senators on the committee. He described the interrogation technique, which simulates drowning, as "repugnant."
But he stated that "actual facts, circumstances, and the legal standards presented" must decide the legality of the practice.
A number of Democrats found this answer unsatisfactory. Four of the 10 Democrats on the 19-person committee decided to oppose his nomination, as have all 4 senators who are seeking the Democratic presidential nomination.
The Wall Street Journal argued that Democrats are exploiting the issue in order to make political capital.
The Washington Post wrote that Mukasey committed himself to reviewing the law governing interrogation and "if he is rejected no nominee is likely to promise more." The Chicago Tribune and the Seattle Post Intelligencer also sided with the nominee.
One commentator receiving less coverage was picked up by Slate. Michael Nance is a counterterrorism consultant for U.S. military and government agencies with first-hand experience of the interrogation technique in question.
His assessment is unequivocal: "Waterboarding is torture. Period."
On Oct. 30, Mukasey attempted to defuse the issue with a letter addressed to the 10 democratic senators on the committee. He described the interrogation technique, which simulates drowning, as "repugnant."
But he stated that "actual facts, circumstances, and the legal standards presented" must decide the legality of the practice.
A number of Democrats found this answer unsatisfactory. Four of the 10 Democrats on the 19-person committee decided to oppose his nomination, as have all 4 senators who are seeking the Democratic presidential nomination.
The Wall Street Journal argued that Democrats are exploiting the issue in order to make political capital.
The Washington Post wrote that Mukasey committed himself to reviewing the law governing interrogation and "if he is rejected no nominee is likely to promise more." The Chicago Tribune and the Seattle Post Intelligencer also sided with the nominee.
One commentator receiving less coverage was picked up by Slate. Michael Nance is a counterterrorism consultant for U.S. military and government agencies with first-hand experience of the interrogation technique in question.
His assessment is unequivocal: "Waterboarding is torture. Period."
Headline Link: Democrats and Bush on Mukasey
The most senior Republican on the judiciary committee, Sen. Arlen Spector (R–Pa.), said on Nov. 4 that though he would have liked Mukasey to take a firmer line on waterboarding, he would support his nomination. "I would have liked better assurances," Specter said. "And I think Congress ought to take a firm stand on waterboarding."
Source: The New York Times
Sen. Chuck Schumer (D-N.Y.) and Dianne Feinstein (D–Calif.) said on Nov. 2 that they will vote in favor of Mukasey’s nomination. Those two votes mean that the New York judge is almost certain to become attorney general on Nov. 6. Schumer’s decision also ends speculation that the Democratic senator might find himself in the potentially embarrassing predicament of having to vote against a nominee that he was among the first to put forward.
Source: The New York Times
On Nov. 2, for the second day in a row, President George W. Bush spoke in support of his nominee for attorney general. According to the International Herald Tribune, he argued that to reject Mukasey "would set a new standard for confirmation that could not be met by any responsible nominee for attorney general."
Source: International Herald Tribune
Opinion: The realities of legal practice and the realities of waterboarding
Michael Nance has first-hand experience of waterboarding, both as interrogator and interrogatee. According to his blog, "Small Wars Journal," Nance is a “counterterrorism and terrorism intelligence consultant to the U.S. government’s Special Operations, Homeland Security and Intelligence agencies.” On the proper status of the controversial interrogation technique, Nance writes, “It is torture, without doubt.” He also states, “Waterboarding is just the type of torture [that] Lt. Commander John McCain had to endure at the hands of the North Vietnamese.” He adds, “Waterboarding is not a simulation … It does not simulate drowning, as the lungs are actually filling with water.”
Source: Small Wars Journal
The Wall Street Journal is dismayed that senior Democrats would “would disqualify a man of impeccable judicial temperament and credentials merely because he’s willing to give U.S. interrogators the benefit of the legal doubt before he has top-secret clearance.” The Journal commends Mukasey’s refusal to reject waterboarding on two counts: he refrains from passing judgment when he has only “hypothetical facts and circumstances” to go on; and second his discretion helps “to keep our enemies in some doubt about what they will face if they are captured.” As to the practice of waterboarding itself, “It has been used only against a few high-value al-Qaeda operatives,” according to the Journal, which argues that is a legitimate and useful interrogation method for application under extreme circumstances. In the Journal’s assessment, “The political calculation here is clear: Democrats want to pander to the antiwar base of their party that doubts we are even in a war … Yet they don’t want to be responsible for passing a statute that blocks CIA attempts to gain information that could prevent an imminent terrorist attack. So they dodge and employ ambiguous language that the Justice Department must then interpret. And then they try to run Judge Mukasey out of town because he won’t do their political work for them.”
Source: The Wall Street Journal (subscription may be required)
On Mukasey and torture, The Washington Post concludes that the Senate should “confirm the former and ban the latter.” According to the Post, Democrats have made the judge a proxy for President Bush. The Post writes that to state that waterboarding is illegal (Mukasey described it merely as “repugnant”) “would have been likely to bring him into conflict with existing Justice Department memorandums that have been used by CIA interrogators and others to legitimize their actions. Mr. Mukasey has promised a careful review of each of those memorandums; if he is rejected no nominee is likely to promise more.”
Source: The Washington Post
The New York Sun was unequivocal in its praise of Mukasey’s letter to the Democrats, which is described as “sage and mature” and worthy of applause from “those who place national security over political ambition.” In particular, the Sun praised what it interpreted as Mukasey’s refusal to concede a point in order to win the nomination.
Source: The New York Sun
Rosa Brooks of the Los Angeles Times depicts Mukasey’s statement as lacking in honesty. According to Brooks, the nominee’s position on the issue is that the legality of waterboarding “would depend on the circumstances, he’s not sure if the CIA actually uses it, and he wouldn’t want any CIA interrogators who might have used it to think they could be in legal trouble.” Brooks is firm in her opinion of these arguments: “This is garbage.”
Source: Los Angeles Times
The Chicago Tribune judged that the attorney general nominee will not explicitly condemn waterboarding before the committee and nor should he. In contrast to the position of Rosa Brooks in the Los Angeles Times, the Tribune argues that “such a declaration could open the potential for criminal prosecution or lawsuits against CIA officers who used the harsh interrogation practice.” Whereas Sen. Dick Durbin (D-Ill.) has said that the nominee “hasn’t made up his mind about a form of torture that has been repudiated for centuries,” the Tribune begs to differ. “Mukasey has stated his own beliefs,” writes the paper. “What he won’t do is be backed into a legal corner on a complex issue before he is even confirmed as the nation’s top law-enforcement official.”
Source: Chicago Tribune
The Seattle Post Intelligencer concurs with the opinions of other papers, such as the Chicago Tribune, that have defended Mukasey’s refusal to say how he would rule on waterboarding were he to become attorney general. Although the Tribune was adamant that the Democrats are making political capital out of discomforting the president, it also states that “it would be wrong to accuse Leahy and company of totally political motivation.” The heightened security of post-9/11 America “could lead us away from civil liberties,” states the Tribune, and “the international leadership that we maintained in human rights has been slipping badly as a direct result.”
Source: Seattle Post Intelligencer
Republican presidential candidate John McCain voiced his support for Mukasey’s nomination on Nov. 2, arguing that waterboarding was unacceptable, not currently practiced by U.S. agencies, and that he felt confident that the nominee would not endorse the technique as attorney general. McCain endured torture during his five and a half years as a POW in Vietnam. Regarding waterboarding, he said recently, “If you inflict enough physical pain on anybody, they will tell you anything you want to know.”
Source: CBS News
Reference Material: Mukasey’s letter to Democrats and waterboarding described
On Oct. 30, Mukasey delivered a letter to the 10 Democrats on the Senate confirmation committee in response to their concerns regarding his position on torture and certain interrogation techniques, in particular waterboarding. He described those techniques as “over the line or, on a personal basis, repugnant to me.” Putting his personal feelings to one side, he stated that “legal questions must be answered based solely on actual facts, circumstances, and legal standards presented.” The full text of that letter is available online.
Source: The New York Times
Waterboarding is an interrogation technique in which “the prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.” ABC News provides a description of the technique and relates how CIA officers have used it to interrogate al-Qaeda suspects.
Source: ABC News
The first recorded instance of waterboarding dates to the 14th century, according to this National Public Radio history of the practice.
Source: NPR
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