The full statement of Sen. Schumer explaining why he will vote to confirm Michael Mukasey as AG appears here. Schumer says that DOJ needs strong independent leadership and that if Mukasey is rejected, President Bush will simply appoint an acting AG who will be worse. NY's senior Senator also says that "this nominee, indeed any proposed by President Bush, will not agree with" his view that waterboarding is currently illegal. But Schumer takes heart from the fact that Mukasey assured him that if Congress enacts a new law clearly outlawing waterboarding, then he will enforce it. Specifically, Mukasey does not believe that the President's power as Commander in Chief would permit him to disregard such a law.
Talk about grasping at straws! What exactly is the likelihood that President Bush would sign a bill expressly forbidding waterboarding? Or that a 2/3 majority of each house of Congress could be found to override his veto of such a bill? Mukasey's guarantee is costless because he'll only serve until January 2009, or, if he continues as a President Giuliani's AG, there will still be no occasion for him to enforce a law specifically forbidding waterboarding.
More broadly, the suggestion that we need a law forbidding waterboarding is bizarre. We have several such laws already. They just don't single out individual practices by name---and for good reason. In the fantasy world in which President Bush signs or Congress overrides his veto of a bill banning waterboarding, is it really that hard to imagine what would happen next: Interrogators would be told that no, they can't use water to simulate drowning, but nothing forbids them from using orange juice.
Posted by Mike Dorf