Attorney general nominee's answer on torture frustrates Democrats
Michael Mukasey refused to directly disavow harsh interrogation methods
Said he would resign before following an order he believed unconstitutional
Nominee expected to receive confirmation
WASHINGTON (CNN) -- The refusal of attorney general-nominee Michael Mukasey to directly disavow waterboarding and other harsh interrogation techniques frustrated Senate Democrats Thursday.
Under tough questioning on torture policy on the second day of his confirmation hearings, the retired federal judge repeated his view that torture is unconstitutional, but he would not categorically declare any specific techniques to be prohibited.
"I don't think I can discuss techniques," Mukasey told the committee, as skeptical Democrats pressed on.
When asked by Sen. Sheldon Whitehouse, D-Rhode Island, if waterboarding was constitutional, Mukasey responded "I don't know what's involved in the techniques. If waterboarding is torture, torture is not constitutional."
Whitehouse continued, "'If it's torture.' That's a massive hedge, I mean it either is or it isn't. Do you have an opinion whether waterboarding -- which is the practice of putting someone in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?"
"If that amounts to torture, it is not constitutional," Mukasey said.
"I'm very disappointed in that answer," Whitehouse said.
Judiciary Committee Chairman Patrick Leahy, D-Vermont, and Sen. Richard Durbin, D-Illinois, said they, too, were dissatisfied by the conditional answers.
Although waterboarding was specifically prohibited in a law passed by Congress, the Bush administration has declared that while it does not torture detainees it won't publicly reveal which harsh interrogation techniques may be used.
Mukasey attempted to explain his conditional responses.
"I know the way cross-examinations proceed. You start with an easy step and then you go down the road. I don't want to go down the road on interrogation techniques," he said. "Did the things that were presented to me seem over the line to me as I sit here? Of course they did."
But he added, "I think I need to be very careful about where I go on that subject."
Several Democratic senators also reacted coolly to Mukasey's views on presidential authority under the Constitution to order surveillance without a court-issued warrant.
During the previous day's testimony, Mukasey said he does not believe the president has legal authority to approve torture techniques for use on terror suspects, something former Attorney General Alberto Gonzales refused to say.
Mukasey disavowed a memo written by former Justice official Jay Bybee that justified certain harsh techniques. "The Bybee memo, to paraphrase a French diplomat, was worse than a sin. It was a mistake. It was unnecessary," he said.
Although senators gave no signal they would oppose the nomination, which appears solidly on track, Democrats made clear they were less pleased with Mukasey's answers than they had been the previous day.
"I don't know whether you received some criticism from anybody in the administration last night after your testimony, but I sense a difference and a number of people here -- Republican and Democratic alike -- have sensed a difference," Leahy told the nominee.
Mukasey assured Leahy he had not been so criticized and had spent Wednesday night with his family.
On the first day of Mukasey's confirmation hearing Mukasey made it clear to senators he would be independent from the White House and would make legal decisions based "on facts and law, not by interests and motives."
Mukasey also said he would resign from office if faced with a presidential order he believed was unconstitutional.
"I would try to talk him [the president] out of it -- or leave," he said. In his short opening statement, Mukasey said everyone in the Justice Department is "united by shared values and standards."
"I am here in the first instance to tell you, but also to tell the men and women of the Department of Justice, that those are the standards that guided the department when I was privileged to serve 35 years ago, and those are the standards I intend to help them uphold if I am confirmed," Mukasey said.
On Wednesday, Leahy predicted Mukasey, a retired federal judge appointed to the bench by President Reagan, would have no trouble winning Senate confirmation "because we know that we need somebody to clean up the Department of Justice."
Leahy said the hearing would conclude Thursday, after the panel hears from outside legal experts regarding Mukasey's views and legal opinions.