By Major Garrett
Sen. Hillary Clinton swiftly joined two other Democratic presidential candidates Tuesday in pledging to oppose confirmation of Michael Mukasey as attorney general, saying the nominee's views on torture and executive power overstep executive authority.
Sen. Barack Obama, of Illinois, and Sen. Christopher Dodd, of Connecticut, have also vowed to vote down Mukasey, while Sen. Joseph Biden, of Delaware, said late Monday that unless Mukasey defines waterboarding as torture, he won't vote to confirm the attorney general nominee.
"After Alberto Gonzales's troubled tenure, we cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law," Clinton said in a statement.
The New York senator said Mukasey has been unwilling to clarify his views on both matters, and that she has "no choice but to oppose his nomination."
Obama said in a statement Tuesday morning that Mukasey's "professed ignorance of the debate over the propriety of practices like 'waterboarding,' or simulated drowning, as a means of interrogation, was appalling."
Obama said Mukasey's reluctance to address issues of torture head on and his belief that the president "enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security" disqualify him, despite the judge's legal credentials.
Meanwhile, fellow presidential candidate Biden said he is waiting on a response from Mukasey to a letter he and all the Democratic Senate Judiciary Committee members sent last week asking the nominee to clarify answers he gave about waterboading during his confirmation hearing earlier this month. The presidential candidate indicated that he considers Mukasey's responses to lawmakers' questions at the hearing evasive at best.
"I think Judge Mukasey's comments on waterboarding were outrageous, especially given that he's seeking the job of attorney general," Biden told FOX News. "Anyone who thinks that waterboarding is not torture, is not fit and will not have my support to be attorney general."
Though Mukasey's confirmation appeared on track, the waterboarding issue and his views on executive power have introduced an unexpected dimension of jeopardy.
Mukasey declined to declare waterboarding illegal on his second day of his confirmation hearing before the Senate Judiciary Committee on Oct. 18.
Asked by Sen. Sheldon Whitehouse, D-R.I., whether waterboarding is constitutional, Mukasey responded: "I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional."
"'If waterboarding is constitutional' is a massive hedge," Whitehouse replied.
Mukasey answered: "No, I said, 'If it's torture.' I'm sorry, I said, 'if it's torture.' "
Whitehouse: "If it's torture? That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion on whether waterboarding, which is 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?"
Mukasey: "If it amounts to torture, it is not constitutional."
Whitehouse: "I'm very disappointed in that answer. I think it is purely semantic."
Whitehouse told FOX News last week that he hadn't decided whether Mukasey's answers disqualified him from receiving his support for confirmation. The vote on Mukasey's confirmation could come as early as Thursday, although it is not currently on the committee's announced schedule.
In a conference call with reporters, Dodd said he would "bring up" Mukasey's fate at the Democrats' presidential debate in Philadelphia Tuesday night.
Dodd said the issue of waterboarding, while important, paled in comparison to his concerns about what he called Mukasey's expansive view of executive power in times of war.
"Suggesting the president has the power to be above the law is a very very troubling statement," Dodd said, adding, "You could have any president claim at any time that this is a national security matter (and thereby override a federal law or constitutional right). You've opened up Pandora's box here. I don't know that anyone's done that. This is a fundamental question of whether or not you understand the law."
Dodd has drawn some attention among netroots Democrats for identifying issues they care about and taking bold and sometimes solitary stands against Beltway orthodoxy and the more cautious approach of other Democratic rivals for the presidency.
Dodd drew widespread praise from liberal activists by announcing he would single-handedly delay any move to grant retroactive legal immunity to telecommunications firms that cooperated with the Bush White House's then-secret Terrorist Surveillance Program.
When asked if this were part of a larger strategy, Dodd demurred.
"I'm not making these issues up, you know," he said.
On the telecommunications immunity, Dodd said he was not persuaded that there might have been legitimate reasons for the companies to cooperate with the White House, even though there was no court order.
"I'm opposed at a basic level, on a wholesale basis," Dodd said. "Any junior prosecutor knows you need a court order. The question that should have been asked was 'Why all of the sudden?' And if we grant this immunity now, what about the next time? When do you say no?"