Democratic Senators are poised to once again grill Attorney General Michael Mukasey on the issue of whether the interrogation technique called waterboarding — or simulated drowning — constitutes torture and is therefore illegal under U.S. laws.
At his confirmation hearing three months ago, Mukasey was able to dodge the question by saying he had not been "read in" to the classified programs involving detainee interrogation. On Wednesday, at his first congressional appearance since his controversial confirmation, he will have no such excuse.
Senators' interest in Mukasey's response has not waned since the hearings, when Mukasey explained that he didn't know "what was involved in the technique." Mukasey's response prompted Sen. Sheldon Whitehouse, D-R.I., to accuse him of a "massive hedge" on the issue.
After the hearings Mukasey wrote that he found certain interrogation techniques "repugnant" on a personal basis, but he refrained from calling them torture based on "hypothetical facts."
He was ultimately confirmed as attorney general by a vote of 53-40.
In preparation for the hearing on Wednesday, Democrats on the Senate Judiciary Committee have sent Mukasey a letter warning him that he has had "ample time" to study the issue. The senators wrote, "Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subjected to this abusive technique. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners."
Mukasey will also be asked about the Bush administration's legal position on the controversial Terrorist Surveillance Program that authorized warrantless surveillance of communications between suspected terrorists and parties within the United States and led to the Foreign Intelligence Surveillance (FISA) legislation currently before Congress.
Senators will return to the issue of executive power. At his confirmation hearing, Mukasey raised the ire of a number of Democratic senators when he was asked in the context of surveillance law that had been passed by Congress whether the president can ignore certain statutes.
Senate Judiciary Chairman Patrick Leahy, D-Vt., asked, "Can a president put somebody above the law by authorizing illegal conduct?"
Mukasey said, "The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law."
Since taking office, Mukasey has moved quickly to fill several vacancies after top officials resigned during the tumultuous tenure of his predecessor, Alberto Gonzales. Gonzales himself resigned after allegations that inappropriate political considerations had influenced the decision to dismiss nine U.S. Attorneys in 2006.
Mukasey has issued new procedures to ensure that communications between the White House staff and the Justice Department on pending criminal or civil investigations are handled only by certain designated officials to shield such investigations from potential political influence.