Mukasey unsure on waterboarding legality

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Letter expected to boost support
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.

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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.”

Uncertainty in Congress legislation
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 whether 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.