WASHINGTON — In response to growing Senate criticism, Attorney General Nominee Michael Mukasey Tuesday condemned a controversial interrogation technique as "repugnant" and possibly "over the line", but he declined to explicitly rule it out as torture.
Mukasey, a retired federal judge, said he could not speculate on the legality of waterboarding because he had not been briefed on any classified practices. However, he pledged to scrutinize the current interrogation techniques.
"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President," he said in a written statement to the Senate Judiciary Committee.
Top Democratic presidential candidates issued statements earlier Tuesday that they couldn't support Mukasey's confirmation because of his views on torture and presidential wartime powers.
New York Senator Hillary Clinton, the leading Democratic candidate, said she was "deeply troubled" by Mukasey's stance and would vote against him.
"When we leave any doubt about our nation's policy on torture, we send a terrible message to the rest of the world," she said.
Mukasey, however, appears caught in a political and legal bind.
President Bush has said the United States does not torture while acknowledging the use of unspecified harsh techniques. Bush refuses to rule out waterboarding. Critics accuse Mukasey of hedging because any statement he makes could have bearing on the legal liability of CIA interrogators who may have relied on waterboarding in questioning terrorism suspects. A 2002 Justice Department memo appeared to allow the use of such a technique before the president issued an executive order that placed new limits on interrogations.
In acknowledging his quandary, Mukasey said he would not want any statement of his to present interrogators in the field "with a perceived threat that any conduct of theirs, past, or present ... could place them in personal legal jeopardy."
By refusing to rule out waterboarding, Mukasey could doom his confirmation and the White House could be left without a permanent successor to former Attorney General Alberto Gonzales, who resigned in August amid accusations that he allowed politics to taint the department.
During his confirmation hearings earlier this month, Mukasey said he did not know whether waterboarding — a tactic that involves pouring water on a prisoner's face to trigger the gag reflex — was unconstitutional or amounted to torture.
In Tuesday's response, Mukasey said the technique would be a violation of military codes of conduct. However, he pointed out that current law does not explicitly ban certain techniques. The law prohibits "any person in the custody or control of the United States, regardless of nationality or physical location," from being "subject to cruel, inhuman, or degrading treatment or punishment."
Mukasey said waterboarding would be considered torture if it was intended to cause "severe physical pain or suffering" or "prolonged mental harm."
Tuesday's statement, issued shortly before the close of business, could embolden critics who believe Mukasey should not be confirmed because he refuses to be clear on the legality of waterboarding and the president's sweeping assertion of war powers.
Democratic Senator Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, said Tuesday night that he "remained very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal."
Leahy, however, added that he wanted Mukasey's response to other written questions before scheduling a confirmation vote.
Only weeks ago, Mukasey's confirmation was seen as a virtual slam dunk because Democrats and Republicans saw him as a moderate candidate capable of repairing the Justice Department's reputation.
New York Senator Chuck Schumer, a Democrat, and Connecticut Senator Joseph Lieberman, an Independent, lavished glowing praise on Mukasey in an unusual endorsement of a Republican nominee.
But last week, senators from both parties began questioning whether they could support Mukasey because he didn't respond clearly during his confirmation hearings to questions about torture and expansive presidential powers. While Mukasey condemned the use of torture, he wouldn't say whether waterboarding itself should be deemed illegal. "If it amounts to torture, it is not constitutional," he said.
Mukasey also told senators the Constitution does not prevent the president from wiretapping or eavesdropping on terrorism suspects without court authorization.
Citing such views, Democratic Presidential Nominees Barack Obama, Chris Dodd and John Edwards said they would oppose Mukasey's confirmation.
"We don't need another attorney general who believes that the president enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security" Obama said.
Late Tuesday, Democratic Presidential Candidate Joseph R. Biden Jr. joined in opposing Mukasey's confirmation citing the most recent statements.
Senate majority leader Harry Reid told reporters he wanted Mukasey to say, "'I'm convinced waterboarding is torture.'"
Republican Senators John McCain and Lindsey Graham also criticized Mukasey's earlier response, but have not said how they'll vote on his confirmation.
McCain, a former prisoner of war during the Vietnam War, noted on the Sunday talk show, ABC This Week, that waterboarding was a technique "invented in the Spanish Inquisition."
If the United States uses waterboarding, McCain asked, "How do we keep the moral high ground in the world?"
Other Republicans, however, accused Democrats of stalling Mukasey's confirmation at a time when both parties agree the Justice Department is in need of new leadership.
Republican Senator Jon Kyl said at least nine out of the top 15 Justice Department positions are vacant or filled with temporary employees. Meanwhile, the Justice Department continues to be led by Acting Attorney General Peter D. Keisler and Acting Deputy Attorney General Craig Morford.
"We have got to get an attorney general confirmed," Kyl said. "And certainly Judge Mukasey is that man."