Sen. Dianne Feinstein did the right thing in announcing that, unlike some of her Democratic colleagues on the Senate Judiciary Committee, she will support the confirmation of Michael B. Mukasey as U.S. attorney general. We too endorse Mukasey's confirmation, despite his refusal to tell Democrats what they, and we, wanted to hear: that the simulated drowning known as waterboarding is a form of torture.
Even given that dodge, Mukasey would represent a dramatic improvement over former Atty. Gen. (and Bush crony) Alberto R. Gonzales. And this administration is unlikely to produce anyone better. But after the Senate confirms Mukasey, it should do something else. It should approve legislation requiring CIA interrogators to abide by the same standards that govern military interrogators -- standards that prohibit waterboarding. On Friday, Mukasey told Sen. Charles Schumer (D-N.Y) that he would enforce such a law.
Mukasey, who once seemed likely to be confirmed by acclamation, has only himself to blame for the hemorrhaging of Democratic support for his appointment. It seems obvious that waterboarding violates the 2005 Detainee Treatment Act's ban on "cruel, inhuman or degrading" treatment of captives. Yet Mukasey wouldn't commit himself in advance to such a determination, citing the fact that he hasn't been briefed about the details of "enhanced" CIA interrogation methods.
That didn't stop him from reminding senators that Congress has exempted the CIA from the strictures of the Army Field Manual on Intelligence Interrogation, including a ban on waterboarding. Therefore, he said, he would have to decide on his own -- after taking office -- whether a "particular technique" violated laws against torture or cruel, inhuman or degrading treatment.
If the technique were waterboarding, we'd like to think that a lawyer of Mukasey's stature would answer yes. But if senators are unsure, there is a remedy: Close the loophole in the Detainee Treatment Act that gives CIA interrogators more latitude than their military counterparts. That double standard encourages speculation here and abroad that, regardless of what President Bush says, "enhanced" interrogation is torture by another name. An all-encompassing standard for interrogations has been endorsed by Sen. Edward M. Kennedy (D-Mass.), who opposes Mukasey's confirmation. It also should be embraced by senators who plan to support the nominee.