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?
One year ago, in a response to a question on the proverbial "ticking time bomb" scenario, Sen. Hillary Clinton told the New York Daily News, "In the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans, then the decision to depart from standard international practices must be made by the president, and the president must be held accountable." She has since reversed herself, as she has on many issues.
But the Democrats, including Sen. Clinton, seem to want to lead Mukasey into a trap. They want him to declare waterboarding torture, which is illegal, and then they'll consider confirming him. And then what?
If it turns out the president of the United States personally authorized waterboarding, what would the Democrats want Attorney General Mukasey to do next? Would the president be brought up on criminal charges for violating U.S. prohibitions against torture? Or would the attorney general recommend that Congress impeach him? Or could he petition the Supreme Court to decide whether the president's constitutional powers as commander in chief allow him to violate U.S. law during wartime?
You can just imagine some Democrats salivating at the prospect of an administration appointee going after his boss in this fashion. But the country would be the worse for it.
It may be that waterboarding is torture. Like Judge Mukasey, I'm not sure. The drowning sensation lasts a short time and causes no lasting physical harm, and some of our own military and intelligence operatives have undergone the procedure to train them in how to resist revealing information under interrogation.
Even if waterboarding is torture, however, I can certainly imagine circumstances in which it is justifiable to use the technique to save lives. Those circumstances ought to be rare and require authorization at the highest levels. But if waterboarding would mean preventing another 9/11-style attack, I think most Americans -- including most Democratic senators -- wouldn't hesitate to allow it. Trying to force Judge Mukasey to declare otherwise is just playing politics with his nomination.