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No Mulligan for Mukasey

Driving home from a weekend in the mountains on Sunday, listening to news radio, my wife suddenly asked what the term “waterboarding” means.

I explained the gruesome details, which sounded familiar to her as a Chilean who fled the Pinochet dictatorship.

“Oh, you mean torture,” she said. “Why do they make it sound like some sort of new sport?” At which point I suggested she seek nomination as attorney general of the United States.

Her response to the image of someone being tied to a plank and dunked backward into a tub of water seemed a helluva lot more reasonable and authentic than that of Michael Mukasey, the current nominee chosen by the White House to replace Alberto Gonzales. During two days of questioning last week by the Senate Judiciary Committee, Mukasey was getting along just swimmingly until he got swept away by a simple, straightforward question: Did he or did he not consider waterboarding to be torture?

Mukasey circularly paddled around the query and finally wound up saying: “I don’t know what’s involved in waterboarding.”

My wife has an excuse. She’s a Spanish teacher whose native language isn’t English. But what’s Mukasey’s story? He’s a retired federal judge and former prosecutor from New York handpicked to replace the very man who gained infamy, in part, by authorizing torture techniques. Does Mukasey need a little memory refresher? Would committee chair Patrick Leahy (D-Vermont) have gotten a more forthright answer if, instead of pursuing his polite questioning, he had pushed aside Larry Craig and held down Mukasey’s head in a nearby Senate toilet bowl for 30 seconds?

“If it amounts to torture, it is not constitutional,” Mukasey said. But he refused to say that waterboarding was torture. Then it got worse. When asked by Democrats whether a U.S. president can blithely bypass a statute, if he can put himself above the law as George W. Bush did in authorizing his warrantless-surveillance program, all of a sudden Mukasey regained his legal memory and, essentially, said “Yes.” His affirmative answer was appropriately cloaked in legalese mumbo jumbo, but his endorsement of extralegal powers by an American president was unequivocal.

Kudos, then, to Connecticut Senator Chris Dodd, whose third-tier, nothing-to-lose presidential campaign has let him sprout a formidable pair of cojones. Earlier this week, Dodd said he had already made up his mind to vote no on Mukasey’s confirmation.

“That is about as basic as it gets. You must obey the law. Everyone must,” Dodd said, referring to Mukasey’s odd and chilling legal theory that the president of the United States is somehow not bound to respect the rule of law.

Dodd has done the right thing and ought to serve as an example for the rest of his Democrat-dominated committee. But don’t count on it. After all, Mukasey was pre-endorsed by other leading Dems like New York Senator Chuck Schumer, who had signed off on his nomination before it was even publicly announced. Other leading Democrats like our own DiFi, Michigan’s Carl Levin and Dick Durbin of Illinois have also been clearing their throats, warning that if Mukasey doesn’t properly clarify his view on torture in answers to written questions from the Senate this week then — maybe, just maybe — they will turn thumbs down.

Sorry, but this sort of equivocation is malarkey on the same maddening scale as Mukasey’s original dodge on the question about waterboarding.

“He should not be confirmed unless he is very, very clear about these aggressive techniques, which violate our laws,” Senator Levin told CBS’s Face the Nation on Sunday, “and violate [the international] Geneva [Convention on treatment of prisoners of war] as being totally unacceptable.”

But Senator Levin, sir, Mukasey was already very, very clear. He simply refused to call waterboarding torture. Why give him a second chance to rectify his remarks when he’s already whiffed? There should be no mulligan allowed when it comes to defending basic human decency, international law and respect for the U.S. Constitution.

If Senate Democrats allow Mukasey to be confirmed, they will lose all credibility in their public protests against the more outrageous policies of this administration. Follow the example of Chris Dodd and simply vote no.