The Senate's No. 2 Democrat said Wednesday he would not vote to confirm embattled attorney general nominee Michael Mukasey, the latest blow to the once-solid choice for the nation's top law enforcement official.
Senate Majority Whip Dick Durbin said his mind was made up after receiving Mukasey's answer on his beliefs regarding waterboarding, a form of interrogation seen by many as a form of torture and prohibited in the Army Field Manual.
As part of a 172-page response to Senate Judiciary Committee Democrats' questions, Mukasey wrote that he believed waterboarding is "repugnant" to him personally, "but hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical."
Durbin said: "Judge Mukasey's letter was very disappointing. I can't understand how a man of his intelligence, with his background, can't see clearly ... that waterboarding is torture and clearly illegal by any standard in the United States."
"I can't support his nomination based on the letter he sent yesterday. ... It was a real disappointment," added Durbin, who also sits on the Senate Judiciary Committee that is considering Mukasey's appointment.
While Republicans on the committee appear to be coalescing around the Mukasey, his support from Democrats — who outnumber Republicans on the committee 10-9 — is faltering. Even his most ardent Democratic supporter, Sen. Chuck Schumer of New York, would not confirm his support Wednesday, saying only he was reading through Mukasey's responses.
"I'm not going to comment on Judge Mukasey here. I'm reading the letter, I'm going over it," Schumer told reporters.
Sen. Arlen Specter, the Judiciary Committee's top Republican, on Wednesday went to bat for Mukasey, who is a retired federal judge.
Specter said that the committee should move forward and send his confirmation to the full Senate for a vote, noting that the Justice Department is in a shambles and needs a capable leader.
Specter said there are major legal obstacles preventing Mukasey from providing a better answer to questions about whether waterboarding is torture.
Specter did not expressly advocate Mukasey's confirmation, but said the nominee's answers appeared satisfactory and said the candidate is seriously constrained from giving a more detailed answer.
"I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go. He has repudiated waterboarding. He has rejected it. But he has stopped short of making a determination of legality," Specter said at the opening of a Senate Judiciary Committee hearing on the Foreign Intelligence Surveillance Act.
"The facts are that expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened," Specter said.
Committee Chairman Patrick Leahy, D-Vt., said those considerations aside, Mukasey should answer the question.
"Many of us felt that the United States, which would roundly and universally condemn the waterboarding of an American held by any other country, many of us felt that the attorney general nominee should do the same thing," Leahy said.
Earlier Wednesday, White House press secretary Dana Perino remained upbeat about the nomination.
"No one is ready to declare it DOA," she said, later adding that many members of the Senate had earlier called Mukasey "an exceptional nominee."
Specter said at least one problem is that if Mukasey issued an opinion, foreign courts might look to that opinion to possibly level criminal charges against Americans. He noted that France attempted something similar to that just last week regarding former Defense Secretary Donald Rumsfeld.
Specter said it's probably also best to avoid defining specific forms of torture — which Mukasey might inadvertently do by answering the questions posed to him — because it could tie an administration hands in the future during a dire emergency.
"We've all dodged around the so-called ticking-bomb case. Nobody wants to articulate a principle of (if) there are any exceptions to torture, and it is probably advisable not to be explicit in that situation because you may make exceptions which will be broadened, as the expression goes, that you can drive a truck through," Specter said.
"But we do know that the Department of Justice is in dire straits. If there's one thing that this committee — and perhaps the entire Senate is unanimous on — it's that the Department of Justice is dysfunctional," Specter said.
Specter acknowledged that Mukasey's nomination could be sunk by the questions on waterboarding, a technique in which the subject is made to feel like he or she is drowning.
"No doubt, the confirmation is at risk at this moment because he has not answered the question categorically," Specter said. But "I think we need to have a very frank discussion with more facts available ... and either fish or cut bait on this important matter."
Specter called for a closed-door meeting in which members of the Judiciary Committee can hear testimony from intelligence officials who would better explain waterboarding, and some of the legal problems surrounding why Mukasey might not be able to answer fully.
Leahy agreed to holding the closed-door hearing. They are not infrequent: The committee held a classified briefing on Tuesday in the lead-up to the FISA hearing being held Wednesday.
When he was first nominated, he appeared to be a shoo-in candidate with a strong record on terror prosecutions, including managing as a federal judge the trial and successful prosecution of the "blind sheik," Omar Abdel Rahman, in the 1993 bombing of the World Trade Center.
In the response to the Committee's Oct. 23 letter, Mukasey said Tuesday that waterboarding was "repugnant" to him personally, "but hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical."
Mukasey wrote that as a judge, he "put aside strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented."
Following Mukasey's response, committee member Sen. Joe Biden, D-Del. — who also is running for the presidential nomination — said he would oppose Mukasey. Biden was joined by the three other Senate Democrats running for president: Hillary Clinton, Barack Obama and Christopher Dodd.