Michael Mukasey, who has been nominated by Mr Bu$h to replace the disgraced Albeerto Gonzalez, has been having a tough time getting approval from the Democrats on the Senate Judiciary Committee. It seems he doesn’t know whether waterboarding is technically torture, although he does opine that he considers it “repugnant.” Dan Egeen discusses this in today’s WaPo.

Attorney general nominee Michael B. Mukasey told Senate Democrats yesterday that a kind of simulated drowning known as waterboarding is "repugnant to me," but he said he does not know whether the interrogation tactic violates U.S. laws against torture.

Mukasey's uncertainty about the method's legality has raised new questions about the success of his nomination. It seemed a sure thing just two weeks ago, as Democrats joined Republicans in predicting his easy confirmation to succeed the embattled Alberto R. Gonzales.

Mukasey raised alarms among Democrats and human rights groups during testimony on Oct. 18. He declined to say whether waterboarding is torture, prompting key Democrats to press the point and say their vote will hinge on his answer to that question.

This is an especially distressing revelation because Mr Mukasey has not only been a lawyer, but he’s also been a judge, and a law professor. He spent 18 years on the bench of the Southern District of New York, which is known as the “Super District” I believe, because it gets some very high priority cases. During Judge Mukasey’s term he heard the cases against Omar Abdel Rahman and El Sayyid Nosair in terrorism cases that grew out of the 1993 World Trade Center bombing, (perhaps better known as the only successful prosecution of terrorists in the United States,) and he also heard the case against Jose Padilla, who now and then knows what day of the week it is, and got haled up on charges of plotting to make a dirty bomb despite any evidence that he had actually done that.

During prior interviews with the Senators, Judge Mukasey tiptoed around the question of torture and refused to commit himself to upholding the law. This earned him some frowns from several Democratic Senators (and possibly a few Republicans, albeit certainly behind clasped hands.)

Judge Mukasey served as Chief Judge of the Southern District from 2001 to 2006 when he unexpectedly retired to return to private practice. He’s also been teaching law during each Spring semester at Columbia Law School since the Spring of 1993. It’s not exactly a rule of thumb, but generally speaking you have to know something about the law to teach at an Ivy League Law School.

Did I mention Judge Mukasey was also awarded the Learned Hand Medal of the Federal Bar Society, among other honors?

I’m not a lawyer. I don’t pretend to be one, but I learned in my first year of college, while studying Constitutional Law, that International Treaties entered into by the United States are laws binding upon the nation, and have the effect of law inside the country. It’s true, you could look it up. It’s in the second paragraph of Article VI.

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.[emph added]

I invite you to notice that this Article imposes upon Senators, Representatives, members of the state legislatures, and officers of the Executive and Judicial branches the obligation to obey all the laws, including such treaties as the US might be party to.

One of those treaties is the Geneva Convention and waterboarding is prohibited. In fact, we jailed and executed some prisoners of war after WWII precisely because they tortured people.

I am astounded Judge Mukasey has forgotten this significant inconvenience about waterboarding.

Mukasey said that techniques described as waterboarding by lawmakers "seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans." But, he continued, "hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical."

This is what some law professors call ”treading water,” although maybe they’re more polite in the Ivy League, where many lawyers are bred to be Senior Partners. But the facts are the same. The law might sound exotic at times in a classroom, but when you’re in a courtroom, trying a case, you’re dealing with real people and real events, and real harm, or so it said in one of my course books. Maybe it’s different in the Ivy League, or when you’re a Republican. (Just show me the Ivy League and Republican exemptions in the law book, please.)

Mukasey also said he is reluctant to offer opinions on interrogation techniques because he does not want to place U.S. officials "in personal legal jeopardy" and is concerned that such remarks might "provide our enemies with a window into the limits or contours of any interrogation program." His arguments are similar to those advanced by the Bush administration in its refusal to discuss waterboarding or other interrogation techniques.

Good Heavens! Learned Hand must be rotating in his grave like a Thanksgiving turkey! Of course they would be in personal legal jeopardy! That is called "breaking the law" and it is the function of the Attorney General of the United States to prosecute criminals. He is tasked with the obligation of upholding the laws of the nation. If they have been breaking the law, which is what waterboarding is, then the AGUS is required to prosecute them, unless there is a Republican exemption in the Geneva Convention.