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AG nominee won't say if waterboarding is torture
David Edwards and Nick Juliano
Published: Thursday October 18, 2007
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Attorney general nominee Michael Mukasey left open the possibility that a controversial technique alleged to be used by CIA interrogators could be considered Constitutional, when he refused to say one way or another whether water boarding is torture.

During the second day of his Senate confirmation hearings, Mukasey was asked if he believed water boarding "was Constitutional."

"If water boarding is torture, torture is not constitutional," Mukasey said, claiming that he was not familiar with the specifics of the process.

Sen. Sheldon Whitehouse (D-RI) called that answer a "massive hedge," and he explained the specifics of the practice -- strapping down a detainee and pouring water over his face to simulate drowning. He asked if that practice would be considered constitutional.

"If it amounts to torture it is not constitutional," is all Mukasey would say.

Whitehouse scolded Mukasey, saying he was "very disappointed" in his "very semantic answer."

"Sorry," Mukasey mumbled.

The former federal prosecutor and district court judge is expected to be easily confirmed, but he has seemed reticent to outline specifics on controversial administration programs such as detainee treatment, the prison at Guantanamo Bay and warrantless wiretapping.

Questioned earlier Thursday by Judiciary Committee Chairman Patrick Leahy (D-VT), Mukasey outlined a view of presidential authority that went beyond existing laws. Responding to a question about warrantless wiretapping, Mukasey said his understanding was that the president's program derived from his wartiime powers to protect the country.

"I see a loophole big enough to drive a truck through," Leahy said, asking why Bush couldn't use that same authority to justify torture. (Mukasey claimed the Constitution is more stringent in outlawing torture than it is in preventing searches of Americans.)

The following video is from, broadcast on October 18, 2007.