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Mukasey Withholds Opinion on Waterboarding

STEVE INSKEEP, host:

In this country, hearings for President Bush's nominee for attorney general became a forum to question techniques on the war on terror. Michael Mukasey received a warm welcome at first, and then he declined to say if he considers an interrogation technique called water boarding to be torture.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: On day one of his confirmation hearing, Mukasey soothed suspicious senators by declaring that in his view the Constitution prohibits torture. But yesterday, when the committee's Democrats pressed for a definition of torture, Mukasey demurred, saying that the comment would be irresponsible and put in legal jeopardy, quote, "people who are being authorized to use coercive techniques."

Senator Richard Durbin asked about specific techniques like water boarding; that is, simulated drowning. He noted that the judge advocates general of all the military services have testified that this and other practices permitted by the Bush administration are illegal under the Geneva Conventions.

Mukasey responded this way.

Mr. MICHAEL MUKASEY (U.S. Attorney General Nominee): This is not a matter of choosing pleasant alternatives. It's a choice among bad alternatives. What the experience is of people in the Judge Advocate General's Corps has been with captured soldiers, captured military people from enemies we've fought in the past may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person.

TOTENBERG: Senator Durbin noted that the Geneva Convention bars torture not just for soldiers but for everyone - military and civilian. Water boarding, initiated in the Spanish Inquisition, has long been viewed as a war crime in the U.S., Durbin observed, noting that as far back as 1901 an American soldier was prosecuted for using the practice against a Philippine insurgent. Even without preface, though, nominee Mukasey would not commit himself.

That prompted this exchange with Senator Sheldon Whitehouse.

Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): So is water boarding constitutional?

Mr. MUKASEY: If water boarding is torture, torture is not constitutional.

Sen. WHITEHOUSE: That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion?

Mr. MUKASEY: If it amounts to torture, it is not constitutional.

Sen. WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.

TOTENBERG: Torture was just one of the many questions involving executive power in which Mukasey's view seemed to reflect President Bush's. If confirmed, would Mukasey allow the Justice Department to enforce a contempt citation against administration officials? Basically, the answer was no. Would he support the president's claim of executive privilege, the president's refusal to provide information even when communications with the president are not involved? Basically the answer was yes.

Is the president acting legally when he allows wiretapping without a warrant, despite the fact that Congress passed specific legislation barring surveillance in the U.S. without a warrant? Mukasey responded that Congress cannot under the Constitution act to trump the president's power as commander in chief.

Committee Chairman Patrick Leahy followed up, asking what the limits are to the president's wartime powers.

Senator PATRICK LEAHY (Democrat, Vermont): Can a president put somebody above the law by authorizing illegal conduct?

Mr. MUKASEY: If by illegal you mean contrary to a statute but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.

TOTENBERG: All the Democrats who showed up yesterday said they found that view, in their words, deeply troubling. But no senator said he would vote against Mukasey. No one disputes a confirmation is just around the corner. The unanswered question is what degree of rejuvenation and independence Mukasey will be able to bring to a severely maimed Justice Department in the remaining 15 months of this administration.

Nina Totenberg, NPR News, Washington.

INSKEEP: You can listen to a lot more of these hearings and decide for yourself, if you like. All you have to do is download a one hour NPR News special with analysis on yesterday's hearing on the nomination of Michael Mukasey. All you do is go to npr.org. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.