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Bush defends Mukasey refusal to condemn waterboarding as illegal

[JURIST] US President George W. Bush on Thursday defended the refusal of Attorney General nominee Michael Mukasey [WH profile; JURIST news archive] to say that waterboarding [JURIST news archive] is illegal. During a press conference [transcript] Thursday, Bush said:

I've submitted a highly competent, smart, independent nominee in Judge Mukasey to the Senate. I am disappointed that the process is taking so long to get his name to the floor.

I believe that the questions he's been asked are unfair; he's not been read into a program -- he has been asked to give opinions of a program or techniques of a program on which he has not been briefed. I will make the case -- and I strongly believe this is true -- that Judge Mukasey is not being treated fairly. He's made the rounds on Capitol Hill, he's answered questions, he's been to hearings. I do thank the Senate for setting up what I hope will be a opportunity to move him out of Judiciary Committee to the floor on Tuesday. It is time to get his nomination to the floor so the Senate can vote him up or down.
Bush also stressed that interrogation techniques used by government officials are within the Detainee Treatment Act of 2005 [JURIST document].

Earlier this week, Mukasey sent a letter [PDF text; JURIST report] to Democrats on the Senate Judiciary Committee saying that he did not know if waterboarding was illegal, and that it would be "irresponsible" of him to provide a legal opinion on any specific interrogation technique without an in depth analysis of relevant laws and more information about its use. While Mukasey's confirmation seemed certain two weeks ago, both Democrats and Republicans [JURIST reports] have said they will consider opposing Mukasey's nomination if he does not unequivocally say that waterboarding is torture. On Wednesday, the Senate Judiciary Committee scheduled the vote [JURIST report] on Mukasey's nomination for November 6. AP has more.

7:52 PM ET: Bush's earlier press conference was a preview of a speech [text; recorded video] delivered Thursday afternoon at the Heritage Foundation. In his remarks, Bush said:
Judge Mukasey provided nearly six hours of testimony. He patiently answered more than 200 questions at the hearing. He has responded to nearly 500 written questions less than a week after his hearing. Yet the Senate Judiciary Committee has been holding up his nomination.

As a price of his confirmation, some on that committee want Judge Mukasey to take a legal position on specific techniques allegedly used to interrogate captured terrorists. As Judge Mukasey explained in a letter to committee members, he cannot do so for several reasons: First, he does not know whether certain methods of questioning are in fact used, because the program is classified -- and therefore he is in no position to provide an informed opinion. He has not been read into the program, and won't until he is confirmed and sword in -- won't be until he is confirmed and sworn in as the Attorney General. Second, he does not want an uninformed opinion to be taken by our professional interrogators in the field as placing them in legal jeopardy.

Finally, he does not want any statement of his to give the terrorists a window into which techniques we may use, and which ones we may not use. That could help them train their operatives to resist questioning, and withhold vital information we need to stop attacks and save lives.

In the war on terror, intelligence is one of the most crucial tools for our defense. If a captured terrorist has information about a plot against our homeland, we need to know what he knows. And so that's why I put in place in place, under the CIA, a program to question key terrorist operatives and its leaders. Last year, Congress passed a law that allows the CIA to continue this vital program. The procedures used in this program are safe. They are lawful. And they are necessary.

Senior leaders in the House and Senate, from both political parties, have been briefed on the details of this program. It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on his willingness to go on the record about the details of a classified program he has not been briefed on. If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for Attorney General. And that would guarantee that America would have no Attorney General during this time of war.

By any measure, Judge Mukasey is eminently qualified to be the next Attorney General. And now, after allowing his nomination to languish for 41 days, the Senate Judiciary Committee has scheduled a vote for next Tuesday. Senate leaders must move this nomination out of committee, bring it to the Senate floor and confirm this good man.

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