All of a sudden, the nomination of for mer Manhattan federal Judge Michael Mukasey as U.S. attorney general may be in jeopardy.
“Torture” is the issue, but it’s a phony: What’s under way is a Democratic effort to hand President Bush a stinging defeat.
All four of the Democratic senators who are running for president – Hillary Clinton, Barack Obama, Chris Dodd and Joe Biden – have now come out publicly against Mukasey. Even Republicans like Arlen Specter and Lindsay Graham are warning that they may vote no.
At issue is Mukasey’s refusal to declare that waterboarding – a harsh interrogation technique that simulates the sensation of drowning – is illegal.
“I don’t know what’s involved in the technique,” Mukasey told the Senate Judiciary Committee. “If waterboarding is torture, torture is not constitutional.”
Why the hesitation?
Because Mukasey still doesn’t have access to the classified guidelines of how the practice is administered or the equally secret Justice Department legal opinion on the issue. Lacking that, he’d be irresponsible if he flatly stated whether or not it meets the legal standard of torture.
Still, it’s not as if he’s endorsed waterboarding. On the contrary: He says he’s prepared to call it illegal if, once he studies the issue, he finds that it is torture.
Problem is, prior court decisions haven’t been very precise about what does constitute torture. And, as The Wall Street Journal notes, the very senators who now demand a firm decision from Mukasey have themselves twice declined to explicitly ban waterboarding.
Happily, Mukasey’s chief sponsor, Sen. Chuck Schumer, is resisting the hypocritical posturing of his colleagues and says he thinks the nominee will be confirmed if he maintains his independence from the White House.
We hope he’s right. America can’t afford to have this nomination undermined by petty partisanship.