It looks like Judge Mukasey will be confirmed as Attorney General. Sen. Feinstein and Sen. Schumer have announced that they will support him — Feinstein because she’s somewhat sensible and Schumer because he’s trapped by the glowing statements he previously made about Mukasey. Schumer may be fond of talking out of both sides of his mouth (after all, it’s a form of talking), but even he isn’t shameless enough to vote against a nominee he hyped merely because the nominee won’t proclaim as categorically illegal an interrogation technique that Congress has declined to declare categorically illegal.
With the votes of Feinstein and Schumer, Mukasey has majority support in the Judiciary Committee. The Senate as a whole is less liberal than the Committee, and Democratic Senators from swing or Republican leaning states can’t afford to vote to the left of Chuck Schumer on this one, nor is there any reason to believe they want to.
In the end Mukasey played the hand well. In his October, 30, 2007 letter to the Democratic members of the Senate Judiciary Committee, he gave three reasons for not being able to opine categorically about the legality of waterboarding. First, he was not briefed about the details of any interrogation program to the extent they are classified, and thus does not know what the precise techniques at issue are. Second, he did not want his uninformed statements to present our professional interrogators and those responsible for reviewing their conduct with the prospect that their actions, though previously approved by the Justice Department, might place them in legal jeopardy. Third, he did not want his statements to provide our enemies with a window into the limits or contours of any interrogation porgram we have in place because to do so might assist them in training to resist such techniques.
Collectively, these reasons gave Mukasey a respectable basis for not answering. Moreover, his letter provided a sound statement of the legal analysis he would use to determine whether coercive interrogation techniques, including waterboarding, are lawful. And he expressed his personal view that waterboarding seems repugnant, thus suggesting that, at a minimum, this is not a technique that should be used except in special circumstances. At the same time, nothing in Mukasey’s letter commits him to the view that effective waterboarding techniques are illegal in exigent circumstances.
In essence, Mukasey did a strip tease for the Democrats on the Committee, plus Arlen Specter and Lindsey Graham, in which he showed them all the skin they could decently demand him to expose, but not all the skin they really wanted to see.
JOHN adds: Schumer may also have felt locked in by his own past pro-torture statements, which went much farther than anything suggested by Judge Mukasey.
PAUL adds: Jennifer Rubin finds evidence that Mukasey assured Schumer that, in his view, the president would be required to enforce a law specifically banning certain interrogation methods, including waterboarding. In other words, Mukasey does not believe that the president’s inherent authority under Article II would provide a basis for ignoring such a law.
Of course, as Rubin points out, President Bush would have the authority to veto such a law. So the “concession” Schumer apparently extracted won’t amount to anything, even if Congress passes such a law.
Knock yourself out, Chuck.
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