Atty. Gen.-designate Michael B. Mukasey, adopting a middle ground on an issue that has become central to his nomination, said coercive interrogation methods, including a form of simulated drowning, were “over the line” and “repugnant.” But he declined to say whether he thought so-called water-boarding was a form of torture that would be illegal in all cases.
His position, detailed in a letter late Tuesday to the Senate Judiciary Committee, where his nomination to succeed Alberto R. Gonzales has stalled, fell short of assurances sought by some leading Democrats and cast doubt over whether Mukasey would be confirmed.
One member of the Judiciary Committee, Sen. Joseph R. Biden Jr. (D-Del.), said Tuesday that Mukasey did not go far enough in condemning torture, and that he would vote against the nomination. “We cannot have a United States attorney general who will equivocate and dissemble on this matter,” said Biden, a presidential candidate.
Sen. Hillary Rodham Clinton (D-N.Y.), the front-runner for her party’s presidential nomination, also weighed in against Mukasey, saying that she was troubled by his “continued unwillingness to clearly state his views on torture and unchecked executive power.”
The water-boarding issue flared earlier this month at Mukasey’s confirmation hearing, where he said he was unfamiliar with the technique -- even though it had been widely publicized and discussed in the wake of prison scandals in Iraq and elsewhere after the Sept. 11 attacks.
The answer struck lawmakers as an evasion, and threw a wrench into the nomination process. All 10 Democrats on the judiciary committee wrote Mukasey a week ago, asking him to make a clear-cut statement of opposition to water-boarding and to describe it as illegal.
Mukasey, 66, a former federal judge in New York, had been embraced as a credible alternative to Gonzales -- someone who would act when he believed the administration was violating the law.
His answers Tuesday, though a disappointment to Democrats, were not unexpected.
Administration officials have declined to discuss specific interrogation methods they might be using. Equating water-boarding to torture could also have stark practical consequences: It would make it a crime under U.S. law and expose American interrogators to prison time.
But advocacy groups said Mukasey was engaging in a further evasion, which they said renders him unfit to head the Justice Department.
“Mukasey was nominated to be the chief law enforcement officer, not the nation’s ethics advisor,” said Jennifer Daskal, U.S. advocacy director for Human Rights Watch. “He should not be confirmed if he cannot say that water-boarding, a form of mock drowning that has been prosecuted as torture since 1902, is illegal.”
Other members of the panel said Mukasey was continuing a pattern of obfuscation.
“Judge Mukasey makes the point that in the law, precision matters. So do honesty and openness. And on those counts, he falls far short,” said Sen. Richard J. Durbin (D-Ill.), another member of the panel. A spokesman said Durbin would announce today whether he would support Mukasey.
At the same time, Democrats are facing the possibility that President Bush will never send up a nominee who disagrees with his torture policy. If the torture issue becomes a litmus test, that could leave the Justice Department without what even Democrats say is some badly needed leadership for the remainder of the Bush presidency.
In his letter, Mukasey said he did not want to offer an opinion on the lawfulness of water-boarding in part because he had not been briefed on the details of interrogation techniques that the administration was actually using. He also said he was concerned that any “uninformed statement of mine” might cause U.S. interrogators to unnecessarily fear that they were violating the law. He also echoed administration concerns that disclosure of techniques would assist the enemy in training to resist them.
“As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans,” Mukasey wrote. “But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.”
“Any discussion of coercive interrogation techniques necessarily involves a discussion of and a choice among bad alternatives,” he said. “I was and remain loath to discuss and opine on any of those alternatives at this stage.”
Judiciary committee Chairman Patrick J. Leahy (D-Vt.) said Tuesday he was “very concerned that Judge Mukasey finds himself unable to state unequivocally that water-boarding is illegal and below the standards and values of the United States.” But Leahy also indicated that he was withholding judgment, pending Mukasey’s responses to other written questions.
The committee has not yet scheduled a vote on his nomination.
Late Tuesday, the White House released Mukasey’s responses to the other questions.
In them, Mukasey indicated he would not be willing to appoint a special prosecutor to investigate allegations of politicization of the department under Gonzales, including the firing of nine U.S. attorneys last year. The issue is part of an internal probe being conducted by the department’s inspector general.
Biden had asked Mukasey whether he would appoint a special prosecutor in the event that the inspector general uncovered potential criminal conduct by Gonzales or other personnel.
Mukasey indicated he believed those charges could be handled by department’s own personnel rather than an outside investigator. “I believe that the members of the department have the integrity and ability to discharge whatever responsibilities they may have in this matter,” Mukasey responded.