Mukasey, Senators Brace for Round 2

Posted January 29, 2008 at 6:40pm

The Justice Department and Senate Democrats could be headed for a new clash over waterboarding if Attorney General Michael Mukasey does not, in the Democrats’ view, adequately answer their questions at a Judiciary Committee oversight hearing this morning.

Democrats plan to make the “Is waterboarding torture?” question a key subject of Mukasey’s first appearance before the committee since his contentious confirmation on Nov. 8. Mukasey’s nomination nearly was defeated after he refused to classify the interrogation technique as torture during his confirmation hearings before the same committee.

On Tuesday, Majority Whip Dick Durbin (D-Ill.) said Democrats may even hold up judicial nominations such as that of Mark Filip, the deputy attorney general candidate, if they don’t get an adequate answer.

“Mr. Filip’s nomination and others will have a much better chance if the attorney general answers the letters,” Durbin said, referring to various missives from Senate Democrats to Mukasey demanding he clarify his position on waterboarding.

Filip, a Chicago district judge, begged off the question of whether waterboarding is torture during his own confirmation hearing, pointing to the fact that his potential new boss had yet to weigh in. The Senate is scheduled to vote on Filip’s nomination on Jan. 31, but the hearing could change that.

“This is his first official performance,” Durbin said of Mukasey.

If Mukasey does not answer the waterboarding question, “That’s not a good start,” Durbin pronounced. “It echoes of a former attorney general who shall go unnamed.”

Durbin was referring to Alberto Gonzales, who was knocked from power last year after being accused of misleading Congress and bungling the firing of nine federal prosecutors in 2006. In a number of sensational hearings, Democrats made political hay of the Justice Department’s troubles all year long.

Despite praising Mukasey initially, Senate Democrats turned on the nominee after he called waterboarding “repugnant” but would not label it as torture during his confirmation hearings. Mukasey defended his stance by saying that he was not privy to the classified program and vowed to review it once confirmed.

Democrats have not forgotten. All 10 Democrats on the Judiciary Committee sent a Jan. 24 letter to Mukasey noting his promise and demanding an answer.

But Mukasey has hinted that he may not answer the torture question at all. At a press conference with reporters Friday, Mukasey said he was reviewing the “current program” governing the interrogation of prominent terrorist suspects.

But after the use of waterboarding, a simulated drowning technique, was revealed, the Bush administration announced that it was no longer being employed. Thus, it would not be part of the “current program.”

“I said that I would review the current program. I said I would review the … Office of Legal Counsel letters, insofar as they relate to the current program, and that I would offer the view of whether the current program is lawful or not and whether those letters are legal[ly] compliant or not,” Mukasey said.

“That’s what I said I would do and I can’t say more and I won’t say more.”

Mukasey pointedly omitted any reference to waterboarding or torture in his prepared testimony to the Judiciary Committee, which was released to the press Monday night.

“Mukasey’s prepared testimony did not address issues Members of the committee have asked him about in advance of the hearing,” Judiciary Chairman Patrick Leahy (D-Vt.) noted.

The chairman added that he hoped Mukasey would be “more forthcoming” than his predecessor.

Several Senators expressed concern about that on Tuesday and confirmed that the issue would be of paramount concern at today’s hearing. The attorney general also can expect to get questions about the status of the Justice Department’s probe into the destruction of CIA tapes depicting waterboarding.

“I’d be disappointed” if Mukasey doesn’t address waterboarding, said Sen. Dianne Feinstein (D-Calif.), who provided a crucial vote for Mukasey’s confirmation. “I think the question is simple. … We ought to have an answer.”

Whether Mukasey answers the question could impact how fast, or even if, top Justice Department slots are filled. In his prepared remarks, Mukasey asks for Senators’ help in confirming Filip and Kevin O’Connor for the top two Justice posts as deputy attorney general and associate attorney general.

“I’m not in a position to connect them in any way,” Sen. Sheldon Whitehouse (D-R.I.), an influential Judiciary Committee member, said of waterboarding and the nominations. “I think there’s a sense that if [Mukasey] is not candid … it is going to make the road a little harder for his nominees.”

“It’ll just change the atmosphere,” Whitehouse added.

The White House also threw a wrench into the process when it last week renominated Steven Bradbury to be the head of Justice’s Office of Legal Counsel. Democrats have called for Bradbury’s ouster because he helped write legal memos justifying the use of harsh interrogation techniques. Bradbury has been running the office without confirmation for two years.

“Steve Bradbury is one of the finest lawyers I have ever met,” Mukasey told reporters last Friday. “I want to continue to work with him.”

Though Mukasey might be in for a harsh grilling today, he may be defended by certain committee Republicans.

Sen. John Cornyn (R-Texas) suggested that Mukasey does not need to render judgment on a tactic that is no longer used.

“It’s a hypothetical question that I don’t think he should answer,” Cornyn said.