Linda Chavez

Judge Michael Mukasey seemed a shoo-in for confirmation to attorney general when he was nominated in September, but now his nomination seems in genuine peril. Democrats who were quick to praise his stellar credentials are suddenly mum on whether they'll vote for the retired federal judge -- that is if his nomination even makes it to the floor of the Senate.

Judiciary Committee Chairman Patrick Leahy, D-Vt., has finally scheduled a committee vote on the nomination next week, but unless at least one Democrat votes to move Mukasey's name forward to the full Senate, the nomination will die in committee.

The Democrats' newfound reservations center on Mukasey's testimony at hearings in mid-October and subsequent written answers he provided committee members this week in which he refused to declare waterboarding torture and therefore illegal.

The technique -- which entails tying a person to a board with his feet elevated, putting a cloth over his face and then pouring water on it -- simulates drowning. Mukasey has said that the method is "repugnant" and may well cross the line that defines torture, which he says is clearly illegal under U.S. law.

But Mukasey won't satisfy Democrats' insistence that he declare waterboarding torture, saying that he has not been sufficiently briefed on the actual use of this coercive interrogation method against a small handful of enemy detainees to be unequivocal in declaring what was done illegal.

It is widely believed that the CIA subjected Khalid Sheik Mohammed, the man who directed the suicide-hijackings that killed some 3,000 persons on September 11, 2001, to waterboarding when he was captured. We don't know for sure because such matters are classified. The Bush administration has said that Mohammed's interrogation, by whatever methods, has yielded invaluable intelligence that interrupted plots in progress and saved countless lives.

Let's assume for the moment both assumptions are true: Mohammed was subjected to waterboarding and he gave up information that allowed the U.S. to prevent more attacks. Would the Democrats really prefer that a U.S. attorney general declare this a violation of U.S. law, even without knowing the exact circumstances of what was done? Wouldn't he then be obligated to launch an investigation into who conducted the interrogation and prosecute them? And what if the president personally authorized waterboarding?

Linda Chavez

Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .

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