Sen. Charles Schumer ended a high-stakes game of chicken with the White House by agreeing to vote for Michael Mukasey to become attorney general, a move that may hurt his standing among fellow Democrats and delays a larger showdown over torture.
Schumer, a high-profile senator and party leader, said Monday that a vote for Mukasey, even without a commitment to oppose waterboarding, is still better than the alternative.
"The fact of the matter is, if Mukasey is rejected, we'll have an acting U.S. attorney (general) who'll do nothing. So even on the grounds of torture alone, you're probably better off with Mukasey who said he's going to look at it and study it. I wish he would have said it's illegal. I think it's illegal."
For New York's senior senator, the entire episode shows you should be careful what you wish for -- and who.
Schumer recommended Mukasey, a former federal judge in New York City, for the attorney general job after Alberto Gonzales resigned under fire. Schumer led the effort to oust Gonzales, and his stamp of approval on Mukasey seemed to make his confirmation all but certain.
Then came waterboarding.
Waterboarding is an interrogation technique which simulates drowning, often through pouring water onto a rag covering the subject's mouth and nose. A form of waterboarding dates back to the Spanish Inquisition, and in the 1980s, federal prosecutors won convictions against a Texas sheriff and deputies for waterboarding prisoners.
Waterboarding is banned for use by U.S. military personnel, but that ban does not include the CIA. The Bush administration refuses to discuss specific interrogation methods, saying it would be foolish to tip off terror suspects. The White House insists it does not torture suspects -- though critics argue that without defining torture, such assurances don't go far.
At Mukasey's confirmation hearing, the judge rankled Democrats by saying he was not familiar with the waterboarding technique and could not say whether it was torture and therefore illegal.
Mukasey later sought to allay those concerns with a letter calling waterboarding "repugnant."
Legal experts caution that if Mukasey called it torture, that could effectively be an admission that the U.S. engaged in war crimes. It could also commit him to prosecuting U.S. officials even before he takes office.
Mukasey's answers still weren't enough for at least half of the Democrats on the Senate Judiciary Committee, including its chairman, Sen. Patrick Leahy.
"No American should need a classified briefing to determine whether waterboarding is torture," said Leahy, D-Vt.
But in synchronized press statements late Friday, Schumer and Sen. Dianne Feinstein, D-Calif., said they would vote for Mukasey, because the rudderless Department of Justice needs a leader.
Those two votes will likely tip the scales on the committee in favor of Mukasey, because all the panel's Republicans are expected to vote for him. Mukasey's nomination is expected to easily pass a vote by the full Senate.
Schumer's decision doesn't sit well with torture opponents, who protested Monday outside the senator's New York office, some wearing orange jumpsuits and hoods. Such public criticism is unusual for Schumer, who has high poll numbers in his home state and guided his party's 2006 Senate election victories.
"I think what we've seen with this Congress is that there are many excuses for many different things: excuses for why we're in Iraq, why Guantanamo is still open. If we can't take a principled position on opposition to torture, then the nation's headed in a very wrong direction," said Matt Daloisio of the group Witness Against Torture.
In explaining his decision, Schumer said he took comfort from a private assurance from Mukasey that, were Congress to pass a law outlawing waterboarding by any government agency, Mukasey would enforce it.
But Congress has wrestled with the issue before and failed to pass such a law. And even if it did, it is not clear that President Bush would ever sign it.
Asked if Bush would veto an anti-waterboarding law, White House spokeswoman Dana Perino said, "Laws that are already on the books ensure that our interrogation practices are lawful."
Schumer's decision to support Mukasey means that he and fellow Senate Democrats are unlikely to get any more answers any time soon.
Associated Press Writer Ben Dobbin in Rochester, N.Y., contributed to this report.
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