Waterboarding Illegal? Mukasey Can't Say

President Bush's nominee for attorney general told the Senate Judiciary Committee on Tuesday that an interrogation technique called waterboarding is repugnant but that he did not know if it is legal.

Michael Mukasey's four-page letter did not satisfy Democrats, many of whom said their vote hinges on whether he's willing to say that the technique, which simulates drowning and is banned by the military, is illegal. Mukasey was widely expected to be confirmed by the full Senate, if by a narrower margin than the White House expected.

Mukasey, a retired federal judge, called the technique "repugnant to me" and pledged to study its legality if confirmed.

"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," he wrote to the committee's 10 Democrats.

Elsewhere in the letter, Mukasey said that he did not know if the technique is still being used by U.S. personnel because he is not yet cleared to receive such classified information. Still, he pledged to stand up to Mr. Bush if necessary and to seek ways to protect the nation from terrorism.

"I would leave office sooner than participate in a violation of law," Mukasey wrote.

Before Mukasey sent his letter, Democrats and a few Republicans had said they were concerned about his refusal to say whether waterboarding is illegal. Some senators also focused on a Mukasey comment that appeared to indicate he believes that the president in some circumstances is not constrained by the law.

"I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States," said Committee Chairman Patrick Leahy, D-Vt., who said Mukasey still owes the panel answers to other questions.

Leahy, who was one of several Democrats who said their votes depend on Mukasey's answer on torture, did not say whether he would support confirmation.

Senate Majority Whip Dick Durbin, D-Ill., earlier this week said he would not vote for confirmation if Mukasey did not answer definitively that waterboarding amounts to torture. Durbin, the chairman of the human rights subcommittee, found Mukasey's statement unsatisfactory.

"Judge Mukasey spent four pages responding and still didn't provide an answer," Durbin said in a statement. "Judge Mukasey makes the point that in the law, precision matters. So do honesty and openness. And on those counts, he falls far short."

Not immediately commenting was Sen. Chuck Schumer, D-N.Y., usually lightning-fast with media comment on virtually any topic. The Senate's Democratic campaign chief suggested Mukasey to the White House as the successor to former Attorney General Alberto Gonzales and has said he has concerns about Mukasey's initial answers to the waterboarding question.

Other senators, particularly those Democrats running for president, had made up their minds hours or days before Mukasey issued his statement.

"We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law," said front-runner Hillary Rodham Clinton, D-N.Y.

Her chief rival for the nomination, Sen. Barack Obama, D-Ill., also criticized Mukasey.

"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. And we don't need another attorney general who looks the other way on issues as profound as torture," Obama said.

Sen. Joe Biden, D-Del., said he would not vote to confirm Mukasey. "We cannot have a United States attorney general who will equivocate and dissemble on this matter. Too much is at stake," he said.

Another presidential hopeful, Sen. Chris Dodd, D-Conn., also has said he would vote against confirmation.

On the Republican side, Sen. Lindsey Graham of South Carolina said Mukasey's letter left him less concerned about voting for confirmation but wanted to raise a few more issues with Mukasey in private.

"I'm favorably inclined to support him," Graham said in a telephone interview. "I think he did himself a lot of good."

Mukasey's letter was expected to boost support for his confirmation, which in the last week had shifted from nearly unanimous to troubled.

In his four-page letter, Mukasey said he would try to balance constitutionality with "our shared obligation to ensure that our nation has the tools it needs, within the law, to protect the American people." But he declined to take a stand on waterboarding because, he said, the question is hypothetical.

It's not known, Mukasey said, whether waterboarding or any other specific harsh interrogation technique is being used, or in what circumstances.

"Legal opinions should treat real issues," Mukasey wrote.

"I have not been briefed on techniques used in any classified interrogation program conducted by any government agency," he added. "For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees."

Waterboarding cannot be used by the military under the Army field manual and a 2005 law on detainee treatment. But Congress has not passed additional legislation banning certain harsh interrogation techniques in all circumstances, Mukasey noted, and he also placed some onus for the uncertainty on Congress.

Mukasey said that after being briefed on current practices as attorney general, he would evaluate whether they would violate the Constitution or U.S. or international law.

Specifically, he said, he would decide wither a technique is torture based on two factors in the U.S. criminal code: whether it was intended to cause severe physical pain or suffering or prolonged mental harm.

In more than 170 additional pages of questions and answers released late Tuesday, Mukasey said that presidential signing statements should not be used to create "unnecessary" confrontations with Congress. He also pledged not to approve the transfer of any detainee to a country where there is a realistic possibility of torture.

Mukasey supported immunizing telecommunications companies that may have turned over secret information about customers to the government in the wake of the Sept. 11, 2001, terrorist attacks. The companies involved, he said, "did so at the government's request and in reliance upon the government's representation that their assistance was lawful. Under these circumstances, retroactive immunity in my judgment would appear appropriate."

Some Democrats say they want to know what information was gathered before they immunize anyone from prosecution.