WASHINGTON — Judge Michael Mukasey's nomination for attorney general ran into trouble Thursday when two top Senate Democrats said their votes hinge on whether he will say on the record that an interrogation technique that simulates drowning is torture.
"It's fair to say my vote would depend on him answering that question," Judiciary Committee Chairman Patrick Leahy, D-Vt., told reporters late Thursday.
"This to me is the seminal issue," said Senate Majority Whip Dick Durbin of Illinois, another member of Leahy's panel. Asked if his vote depends on whether Mukasey equates waterboarding with torture, Durbin answered: "It does."
Senate Majority Leader Harry Reid, D-Nev., said his support could be in doubt over the same issue.
"I think if he doesn't change his direction in that regard, he could have at least one concern and that's me," Reid told reporters.
Leahy has refused to set a date for a vote on Mukasey's nomination until he clarifies his answer to that question.
Separately, a Democrat familiar with the panel's deliberations said Mukasey may not get the 10 committee votes his nomination needs to be reported to the Senate floor with a favorable recommendation unless he says, in effect, that waterboarding is torture. The official spoke on condition of anonymity in order to speak more freely.
"As he always does, Judge Mukasey will answer all questions from the Judiciary Committee in a clear and forthright manner," said White House spokesman Tony Fratto.
Mukasey's confirmation shifted away from being a virtual certainty last week when he refused to say explicitly whether waterboarding amounts to torture and is unconstitutional.
Others in the Senate won't go that far, and no one said Mukasey's confirmation was in doubt. Only one lawmaker, Sen. Bernie Sanders, I-Vt., has announced he will vote against Mukasey's confirmation in part over his answer on torture.
But other lawmakers, like Leahy, Durbin and Sen. Sheldon Whitehouse, D-R.I., said they would vote against Mukasey if he does not equate waterboarding with torture.
Still others withheld comment. Mukasey's chief Democratic patron, Sen. Chuck Schumer, D-N.Y., who suggested the White House consider the former federal judge for attorney general, "has concerns, but he wants to hear what Judge Mukasey says," said Brian Fallon, Schumer's spokesman.
One committee Republican, Sen. Charles Grassley of Iowa, intends to vote for confirmation because he "was satisfied with Judge Mukasey's statements at the hearing that torture is against the law and he does not support torture," said spokeswoman Beth Pellett Levine.
On the second and final day of his confirmation hearings last week, Mukasey refused to say that waterboarding is torture, frustrating senators with no tolerance for legalistic hedging after dozens of non-answers on that and other subjects by the man Mukasey would succeed, Alberto Gonzales.
"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey answered at one point.
But during terse questioning by Whitehouse, Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.
"That's a massive hedge," Whitehouse responded incredulously. "It either is or it isn't."
"If it amounts to torture, it is not constitutional," Mukasey answered.
"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."
Committee members of both parties quickly demanded that Mukasey answer the question, and Leahy has refused to set a date for the panel to vote on the nomination until he does.
"I believe it is necessary for you to respond in detail as to your views on the legality and propriety of water-boarding and the appropriate scope of interrogation under U.S. law and the Geneva Convention," ranking Republican Arlen Specter of Pennsylvania wrote to Mukasey this week.
Congress has prohibited cruel, inhuman and degrading treatment of terror suspects, that lawmakers have said includes waterboarding. The Bush administration has refused to say whether waterboarding is among the interrogation techniques prohibited in an executive order last summer.
But it's not just Democrats whose support wobbled after the confirmation hearings last week.
Leahy said he advised White House adviser Harold Kim, who is handling the nomination, that Mukasey should answer the question plainly when he submits follow-up responses to the committee.
"I've heard from a couple of Republicans on the committee and that they're extremely troubled," Leahy told reporters Thursday after a Senate vote.