Captain's Quarters -

The Senate stayed up past its bedtime last night to struggle with the confirmation for a man Democrats pushed as a "consensus candidate" for Attorney General. Instead of a smooth start to Judge Michael Mukasey's short tenure as the head of the Department of Justice, the Democrats turned the vote into a bitter partisan contest -- and still lost:

A divided Senate narrowly confirmed former federal judge Michael B. Mukasey last night as the 81st attorney general, giving the nominee the lowest level of congressional support of any Justice Department leader in the past half-century.

The 53 to 40 vote came after more than four hours of impassioned floor debate, and it reflected an effort by Democrats to register their displeasure with Bush administration policies on torture and the boundaries of presidential power.

The final tally gave Mukasey the lowest number of yes votes for any attorney general since 1952, just weeks after lawmakers of both parties had predicted his easy confirmation. Mukasey takes the place of Alberto R. Gonzales, who left under a cloud of scandal in September.

He avoided defeat only because a half-dozen Democrats voted in favor of the appointment along with Republicans and Democrat-turned-independent Joseph I. Lieberman (Conn.).

Mukasey, 66, had outraged many lawmakers and human rights groups by repeatedly refusing to classify waterboarding, a simulated-drowning technique, as torture. His few Democratic supporters said last night that, although they are troubled by his equivocal views on waterboarding, they believe Mukasey represents the best possibility for change at the troubled Justice Department. "This is the only chance we have," said Sen. Dianne Feinstein (D-Calif.).

Mukasey doesn't get to classify waterboarding as torture. As I have repeatedly pointed out, the AG and the DoJ don't get to write their own laws. Congress writes the laws, and the AG makes sure that they are enforced. Congress has explicitly forbidden the Pentagon to use waterboarding as an interrogation technique, but has not yet passed that same restriction on other agencies -- and until they do, any instance of waterboarding cannot be said to be explicitly illegal.

That is what makes the Post's description of Democratic angst so irritatingly ironic. The debate partly centered, according to this report, on the boundaries of executive power. Yet the Senate wants the AG to enforce laws Congress has not passed, which would be a rather obvious and objectionable expansion of executive power at the expense of the judiciary.

Congress does not want to take responsibility for restricting the options for time-critical interrogations. Many of these same Senators have thought what a future commission looking into a massive terrorist attack on the US might say if we had a member of the conspiracy in custody and failed to save hundreds or thousands of American lives through coercive interrogation techniques. They want to make sure that they don't have to answer for their choices in those circumstances as those involved in building "the wall" between law enforcement and intelligence agents did after 9/11. They like being in the position of demanding to know why dots weren't connected when they kept putting barriers between the dots themselves.

Malcolm Nance arrived earlier to discuss why he thinks waterboarding is torture:

Malcolm Wrightson Nance, a counterterrorism specialist who taught at the Navy's Survival, Evasion, Resistance and Escape (SERE) school in California, likened waterboarding to drowning and said those who experience it will say or do anything to make it stop, rendering the information they give nearly useless.

"In my case, the technique was so fast and professional that I didn't know what was happening until the water entered my nose and throat," Nance testified yesterday at a House oversight hearing on torture and enhanced interrogation techniques. "It then pushes down into the trachea and starts the process of respiratory degradation. It is an overwhelming experience that induces horror and triggers frantic survival instincts. As the event unfolded, I was fully conscious of what was happening: I was being tortured."

This differs significantly from what Nance wrote earlier about the technique. In his column at the Daily News, Nance wrote that "pint after pint" of water enters the lungs, and that the subjects actually start to drown. That description got disputed in two separate interviews I conducted, one with a former SERE instructor and another with a SEAL. The latter, whom I have known personally for years, explained why Nance's previous description made no sense. Mike's secondary specialty in the SEAL force is as an advanced combat medic. Without getting into specifics on his experiences, Mike strongly disputes Nance's exaggerations of waterboarding. There is a word for people who have "pint after pint of water" filling their lungs: dead.

"In fact," according to Mike, "they would be very, very dead. By definition, anyone who has drowned is in fact dead. A large percentage of true drownings do not involve ANY water entering the lungs because the epiglottis closes off the air passages as water enters the throat. People who die immediately from being immersed in water actually die of suffocation, not water entering their lungs. Not only that, many people who survive a near-drowning who do have even small amounts of water that slip by the epiglottis and enter their lungs can die later of fluid shifts and pneumonia.

"I can assure you that we do not use any technique that involves true suffocation or aspiration of water into the lungs. One cannot get questions to answers from people who suffocate or have water fill their lungs in any interrogation technique, which would render that technique more than a little self-defeating. Dead men tell no tales -- and also make rather poor soldiers."

However, Nance's testimony highlights exactly why Mukasey had to answer as he did. If waterboarding under all circumstances is torture, then we torture our own soldiers. Will Mukasey prosecute SERE instructors, too? Or does it demonstrate that context and circumstances make a difference when deciding whether an ambiguous standard has been violated?

And who profits by that ambiguity? Certainly not the instructors or the interrogators, who now have to worry whether one AG may determine their activities illegal when a long line of AGs before then didn't do so. Certainly not an administration that has to deal with the consequences of such a prosecution. It only benefits those who refuse to take responsibility and attempt to pass the buck where it doesn't belong.

I will have more from Mike and Jon, the former SERE instructor, in a later post.