For many liberals and civil libertarians, the Senate Democrats have long been the political equivalent of the Italian army: They are best seen on parade. While campaigning for the majority in Congress, Democratic Members spoke fiercely of fighting for civil liberties and standing firmly against torture. Once in control of Congress, however, the Democrats have been mainly seen in retreat or open disarray. Now, voters are now demanding concrete action taken in the face of the presumptively false testimony of Michael Mukasey regarding torture.

Mukasey was once viewed as a lock for confirmation as attorney general. After all, he had the most important qualification for the job: He is not, and has never been, Alberto Gonzales. However, on the second day of his testimony, Mukasey appeared to transform into Gonzales when asked one of the most predictable questions of his confirmation hearing: whether the infamous practice of water-boarding is torture.

At first, Mukasey tried to get away with the obvious truism that torture is unconstitutional. However, when pressed further to address the specific question of waterboarding, he shocked many by claiming, “I don’t know what is involved in the technique.”

It was not simply implausible but virtually impossible that Mukasey is unfamiliar with one of the oldest and most used forms of torture. Waterboarding has been around since the Spanish Inquisition — and only later embraced by the Bush administration. It was the subject of famous legal proceedings in the history of the United States, including war crime trials. In 1902, Senate hearings (led by the Republicans like Henry Cabot Lodge of Massachusetts) resulted in the court-martial of Maj. Edwin Glenn for waterboarding prisoners in the Philippines. Like President Bush, Glenn argued national security necessity as grounds for the use of such techniques. After World War II, it was the subject of war crimes trials of Japanese officers who used it against our POWs. In only the last six years, it has been described in literally thousands of publications during this administration and has been cited as the favored form of torture by the CIA.

A Lexis-Nexis search of the past five years shows more than 3,000 references to the practice. A Google search yields more than six million hits. It has has been raised in various lawsuits and Bush has been repeatedly confronted with waterboarding allegations — as have his last two attorneys general. Yet, the man who would be AG swore that he did really did not know what it was. Mukasey did not appear to be confused or clueless. He appeared to be lying to a Senate committee.

To his credit, Sen. Sheldon Whitehouse (D-R.I.) was not willing to let Mukasey off the hook with a seemingly transparent lie. He proceeded to define the practice for him: “the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning – is that constitutional?” Unable to deny that he now knew what waterboarding was, Mukasey went back to his circular mantra: “If it amounts to torture, it is not constitutional.”

Attempting to address the issue from a different tact, Senators asked Mukasey if the president could order the violation of federal laws(waterboarding is both a violation of international and domestic law). Mukasey then took on a more menacing tone and refused to answer. “We are not dealing here with black and white,” he warned, “it’s very important that push not come to shove, because the result could be not just divisive but disaster.”

On this point, some of the Senate Democrats might quietly agree about the disaster. Mukasey’s nomination has finally brought about the moment that both the White House and many Senators wanted to avoid. A truthful answer would mean that we have a president who ordered not only the commission of crimes but acts defined by our own country as war crimes.

Faced with this prospect, Mukasey appeared to lie and then the White House insisted that he was never asked the question in the first place. According to White House spokesman Tony Fratto, Mukasey was simply saying that he was unfamiliar with the techniques used by the government and, since he has not been read into the classified programs, “Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified.” It was defense of Mukasey as dishonest as his original testimony. The record shows clearly that Mukasey was not asked about the specific practices of the United States, but about the common term waterboarding. He was then given the definition of waterboarding and still refused to answer.

Asking the nominee about his understanding of illegal practices is a standard component of a confirmation hearing. If Mukasey were asked whether it is unconstitutional to impose in a poll tax or to flog prisoners, he would be expected to say yes. Any nominee who claimed not to know what was involved with poll taxing or flogging would be treated as either presumptively unqualified or untruthful.

For civil libertarians, this may prove the single most important moment of the past six years — and the final opportunity for the Senate Democrats to confront torture. That may be precisely what some want to avoid. After all,Democrats could have forced a confrontation on this question for years. They notably did not demand such an answer from Gonzales at his confirmation hearing or subpoenaed testimony in later investigations.

Instead, they publicly denounced torture and then conspicuously failed to use their power to stop it or confront it. To do so would reveal a scandal – in part of their own making. We would have to deal with dozens of people who are American torturers. We would have detainees who could demand compensation for their torture at our hands. We would have a president who should be impeached for such crimes. And we would have a Congress that allowed it all to happen.

Under the past rules of engagement, Senate Democrats will now express “disappointment” and some will vote against the nominee — who will be allowed to be confirmed in a preordained vote. However, Democratic voters have learned from the past and are clearly demanding more. If these Senators cannot block a nominee on a principle like torture, the party is truly devoid of a single principle or purpose beyond its own perpetuation.

Mukasey knows what is involved in waterboarding. He knows waterboarding is torture. What he does not know is whether most Senate Democrats really care enough to do anything about it. That is why a successful vote for Mukasey in the Senate will confirm more than a nominee.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Roll Call – October 31, 2007