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Mukasey Prospects Dim Over Waterboarding

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LAURIE KELLMAN | October 31, 2007 06:47 PM EST | AP

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WASHINGTON — Prospects for Michael Mukasey's confirmation as the nation's 81st attorney general dimmed Wednesday after he again refused to equate waterboarding with torture and more Democrats on a key committee announced they would vote against him.

Freshman Sen. Sheldon Whitehouse, D-R.I., announced from the Senate floor that he would oppose Mukasey's confirmation. The retired federal judge's refusal to say that waterboarding, an interrogation technique that simulates drowning, is "unconditionally wrong" would leave open the possibility that U.S. agencies could cross a moral and legal line and use it on detainees, Whitehouse said. He laid the blame for Mukasey's answer at President Bush's feet.

"If we allow the president of the United States to prevent or to forbid a would-be attorney general of the United States ... from recognizing that bright line, we will have turned down that dark stairway," Whitehouse said. "I cannot stand for that. I will oppose this nomination."

Senate Majority Whip Dick Durbin, D-Ill., also a member of the Senate Judiciary Committee, followed Whitehouse to the floor to add his opposition.

"As good a person as he may be, his response to this question, this basic and fundamental question ... leaves me no alternative but to oppose Judge Mukasey's nomination to be attorney general of the United States," Durbin said.

That brings to three of 10 committee Democrats who will vote against Mukasey on Tuesday, when the panel considers whether to advance the nomination to the full Senate for confirmation. Sen. Joe Biden, D-Del., announced earlier this week that he would vote no.

Their announcements came amid a frenzy of behind-the-scenes vote-counting on Mukasey, whose nomination seemed assured just two weeks ago. Other key Democrats, and the committee's ranking Republican, were staying mum.

Even his chief Democratic patron, Sen. Chuck Schumer of New York, refused to say whether he would vote for Mukasey next Tuesday during the Judiciary Committee's consideration of the nomination.

"I'm not going to comment on Judge Mukasey here. I'm reading the letter, I'm going over it," Schumer told reporters Wednesday, hours after the retired federal judge submitted more than 170 pages of elaboration on his positions.

Nowhere in his responses did Mukasey give the definitive answer Democrats were demanding and have made a staple of their campaign message _ that waterboarding amounts to illegal torture.

The chief obstacle is the Senate Judiciary Committee. If all nine of the committee's Republicans vote yes, it would only take support from one Democrat to move the nomination to the full Senate with a favorable recommendation. There, confirmation was expected to win well in excess of a majority.

But unless the nomination survives the committee, it was unlikely Majority Leader Harry Reid, D-Nev., would bring it to the floor for a vote.

The political tea leaves on the committee didn't look promising.

Republicans, clearly concerned, went on the offense from the White House to the Senate floor.

White House spokeswoman Dana Perino said Mukasey was well qualified and answered the committee's questions the best he could, considering he is not cleared to view classified documents on interrogation techniques.

"No one is ready to declare it DOA," Perino said of the confirmation's prospects, pointing out that Mukasey answered 495 written questions.

"We are a nation at war and with a Justice Department that does not have an attorney general," she said. "That's unacceptable. Republicans and Democrats alike said this is the man for the job."

A trio of Republican senators tried to mollify all sides Wednesday, asking for a commitment from Mukasey if confirmed.

"We urge you to publicly make clear that waterboarding can never be employed" by any U.S. government agency, wrote Sens. John Warner of Virginia, Lindsey Graham of South Carolina and John McCain of Arizona.

None of the committee's 10 Democrats, nor its most senior Republican, has said this week that they will vote to advance Mukasey's nomination.

"I need to think more about it," Sen. Dianne Feinstein, D-Calif., said Wednesday morning, hours after Mukasey repeated that he didn't know whether so-called waterboarding is torture and thus illegal. "I very much regret that he couldn't have just been clear and definitive."

Most Republicans on the panel said they had decided to vote for Mukasey's confirmation. But Sen. Arlen Specter of Pennsylvania, the committee's most senior Republican, was mum on his own decision.

"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 Wednesday during a committee meeting. He urged a closed-door session of panel members and acknowledged that Mukasey's nomination is in trouble.

"No doubt the confirmation is at risk at this moment because he has not answered the question categorically," Specter said.

Schumer has been uncharacteristically quiet, repeatedly refusing to comment on Mukasey's answer on waterboarding. Schumer, who drove the inquiry that pressured former Attorney General Alberto Gonzales to resign, has said that he has concerns about Mukasey's answers on torture and executive power. But Schumer has refused to comment on more than 170 pages of elaboration the nominee sent to the committee Tuesday night.

A retired federal judge, Mukasey told the committee on Tuesday that the interrogation method known as waterboarding is "repugnant to me," and he pledged to study its legality if confirmed.

"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," he wrote to the committee's 10 Democrats.

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Associated Press Writer Deb Riechmann contributed to this story.