It was perhaps the most awaited moment of the confirmation hearings when Democratic Whip Dick Durbin of Illinois asked Mukasey directly about water-boarding, a now-infamous process in which an individual is strapped to a board, a towel pulled tightly across his face, and water is poured on him to cut off air and simulate drowning. Although the technique is known to have been used by the CIA on suspected terrorists, it is a clear and unambiguous act of torture under international and U.S. law.
When asked about it, though, Mukasey suddenly seemed to morph into his predecessor, Alberto R. Gonzales -- beginning with a series of openly evasive answers that ultimately led to what appeared to be a lie. At first, he repeatedly stated that he does not support torture, which violates the U.S. Constitution. This is precisely the answer given so often by President Bush like a mantra. The problem is that Bush defines torture to exclude things like water-boarding. It is like saying you do not rob banks, but then defining bank robbery in such a way that it does not include walking in with a gun and demanding money from the cashier.
The senators pushed Mukasey to go beyond the Bush administration mantra. He refused and then said something that made many of us who were listening gasp: "I don't know what is involved in the technique," he said.
There are only two explanations for this answer, either of which should compel the senators to vote against confirmation. The first is that Mukasey is the most ill-informed nominee in the history of this republic. Torture, and water-boarding in particular, is one of the top issues facing the Justice Department, the subject of numerous lawsuits and one of the most obvious, predictable topics at the hearing. It has been discussed literally thousands of times in the media during the last six years. To say he is unfamiliar with the technique is perhaps the single greatest claim of ignorance since Clarence Thomas testified at his confirmation that he really had not thought enough about abortion to have an opinion on the subject.
The second possibility is, unfortunately, the more likely explanation: Mukasey is lying.
There is a strange new tendency in our society to tolerate lies from public officials. When they do it, we call it "playing it safe" or "spin," but not what it is -- a lie. Supporters of President Clinton reacted this way after he lied under oath about his relationship with Monica Lewinsky. Supporters of President Bush reacted this way when he admitted that he lied in saying, before the 2006 elections, that Secretary of Defense Donald H. Rumsfeld would remain in his job.
What is truly astonishing is that the Democrats on the committee are apparently willing to look beyond the nominee's evasive, misleading testimony. Democratic leaders are still supporting the nominee as if torture is some marginal or ambiguous question. Even Democrats such as Chuck Schumer, who have been vocal in their criticism of the use of torture, have showered Mukasey with compliments for his "independence," as if an independent mind means that one no longer needs a moral backbone. It seems that with polls running against the GOP, Democrats hope to win the World Series without ever leaving the dugout: They want to denounce torture but won't expend the political capital it would take to fight a time-consuming and risky confirmation battle.
But they're making a mistake. Whatever his qualifications (and Mukasey has many stellar qualifications), even a vague, ill-defined stance on torture should be a barrier to confirmation -- particularly because it has been the defining issue of this administration. The fact is that, even though the White House has heralded Mukasey's deep religious views as an Orthodox Jew, he has flunked the greatest and easiest moral question put to him.
Torture is not the only issue that should have (but has not) awoken the long-slumbering Democrats. Mukasey also opposed a shield law for journalists. And he supports creating different legal rules specifically for individuals charged with terrorism, despite the longstanding legal principle that all defendants are entitled to the same due process and rights.
But those issues are almost beside the point. This confirmation vote should be about torture. It is truly a defining issue, not just of the meaning of torture but of the very character of our country. It is the issue that distinguishes a nation fighting for the rule of law from a nation that is a threat to it. If members of the Senate consider torture to be immoral, they must vote against Mukasey.
If the administration is unable to find a nominee who will denounce torture, then it should be left with an acting attorney general who will lead the department without the consent of the Senate. After all, there are worse things than being denied confirmation. You could be water-boarded, for example.
Jonathan Turley is a law professor at George Washington University.