Retired U.S. District Judge Michael B. Mukasey’s nomination as attorney general may have run into unexpected trouble yesterday after his refusal last week to say whether the interrogation practice of waterboarding constituted torture.
Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, and Senate Majority Whip Richard J. Durbin, Illinois Democrat, said yesterday their votes hinge on whether the veteran judge will acknowledge that the practice — which simulates drowning — constitutes torture.
“It’s fair to say my vote would depend on him answering that question,” Mr. Leahy said, adding that if the U.S. government “does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners.”
“This to me is the seminal issue,” Mr. Durbin said.
“Indeed, waterboarding has long been recognized as a form of torture and the United States has historically repudiated this practice,” he said, adding that the former judge’s unwillingness to say waterboarding is illegal “may place Americans at risk of being subjected to this abusive technique.”
Last week during his confirmation hearings, Judge Mukasey — under intense questioning by Democrats — declined to call the technique torture or to say whether it was illegal if used against terror suspects. He said he did not know what the interrogation technique involved, but added: “If it amounts to torture, it is not constitutional.”
Mr. Durbin sought a definitive answer from the former judge, saying, “I’m hoping you can at least look at this one technique and say: That clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding.”
“It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else,” said Judge Mukasey, whose conciliatory testimony a day earlier was hailed by Democrats and Republicans.
The White House countered that Judge Mukasey’s responses were vague because he does not know the specifics of the program, adding that he was “not in a position to discuss interrogation techniques which are necessarily classified.”
Waterboarding consists of immobilizing a person on an inclined board and pouring water over the face to simulate drowning. With a cloth over the nose and mouth and cellophane wrapped across the face, the water elicits a gag reflex and can make the person think death is imminent while not causing physical evidence of torture.
In 2002, the Bush administration authorized the use of waterboarding on extrajudicial prisoners, often referred to as “detainees” in the U.S. war on terror.
On Sept. 6, 2006, the Defense Department released a revised Army field manual that prohibits the use of waterboarding by U.S. military personnel amid widespread criticism of the U.S. handling of prisoners in the war on terrorism.
President Bush signed an executive order in July banning torture during interrogation of terrorism suspects.
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