Senate Democrats who had previously praised Michael Mukasey, President Bush’s nominee for attorney general, are now threatening to vote against him because he has declined to opine on whether waterboarding constitutes torture and is therefore illegal. Joe Biden, a key member of the Judiciary Committee, has said he will not vote for Mukasey unless Mukasey states that waterboarding is illegal. And Chuck Schumer has declared through a spokesman that he “is waiting for Judge Mukasey’s answer before passing any judgment.” Meanwhile, Judiciary Committee Chairman Leahy has postponed the vote on Mukasey’s nomination pending the nominee’s answers on waterboarding and other issues.
Mukasey has refused to opine about waterboarding on the ground that he doesn’t know what’s involved in the technique. But this will not remain a tenable basis for not answering, since it’s not difficult to find out what waterboarding entails.
Mukasey should testify that waterboarding is legal in exigent circumstances. Alternatively, he should find another basis for refusing to answer the question. In the unlikely event that the Senate declines to confirm him, Bush should recess appoint Mukasey. Republicans should then remind the American public that waterboarding succeeded in breaking down key terrorists in the days after 9/11, thus enabling our intelligence services to obtain valuable information that terrorists detainees had previously withheld. They should also explain that the government has used the technique on its own employees during training. Finally, the Republican presidential candidate, assuming it’s not John McCain, should make this a major campaign issue.
Vice President Cheney has said that the choice between “dunking a terrorist in the water” and missing out on intelligence that will save American lives is a no-brainer. I’m pretty sure that if the issue is debated, most Americans will see it the same way. If the Democrats wish to impose a categorical ban on the dunk in the water, then Republicans should force them to defend that stance before the electorate.
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