President Bush, seeking Thursday to salvage the embattled nomination of Michael Mukasey as attorney general, defended the former judge's refusal to say whether he considers waterboarding as illegal torture. But the nomination suffered another setback in the Senate.
Sen. Edward Kennedy, D-Mass., said that Muksaey's unwillingness to answer definitively on the legality of the interrogation method that simulates drowning increases the chances that it could be used against U.S. troops.
"I therefore intend to oppose this nomination," Kennedy said in remarks prepared for the Senate floor. "Judge Mukasey appears to be a careful, conscientious and intelligent lawyer, and he has served our country honorably for many years. But those qualities are not enough for this critical position at this critical time."
On the upside for the administration, Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina, announced they would support Bush's nominee.
Bush said it was unfair to ask Mukasey about interrogation techniques on which he has not been briefed. "He doesn't know whether we use that technique or not," the president told a group of reporters invited into the Oval Office.
Further, Bush said, "It doesn't make any sense to tell an enemy what we're doing."
Sen. Chuck Schumer, D-N.Y., whose vote may decide whether Mukasey's nomination survives the Judiciary Committee on Tuesday, said he has not decided but defended his fellow Democrats who have.
"I do not think Democrats are mistreating him at all," Schumer told reporters.
Prospects for Mukasey's confirmation have dimmed because of his refusal to equate waterboarding with torture. Three of the 10 Democrats on the Senate Judiciary Committee have said they will vote against him in the first test of his nomination next Tuesday.
In a potentially ominous sign for the administration, Majority Leader Harry Reid, D-Nev., told reporters he could not guarantee a floor vote if Mukasey's nomination fails in committee.
"I really believe in the committee process," said Reid, who has not announced how he would vote. "If I'm asked by members of the committee to stay out of the fray, I am willing to do that."
Bush called on the Senate to promptly approve Mukasey, saying the nation needs to have an attorney general in place to help wage the war on terror.
"Judge Mukasey is not being treated fairly," the president said. Without saying whether interrogators use waterboarding, a technique that simulates drowning, Bush said that "the American people must know that whatever techniques we use are within the law."
Asked whether he considers waterboarding legal, Bush replied, "I'm not going to talk about techniques. There's an enemy out there."
Mukasey's confirmation seemed assured two weeks ago but now increasingly is in doubt.
‘I cannot stand for that’
Freshman Sen. Sheldon Whitehouse, D-R.I., said Wednesday he would oppose the nomination. Mukasey's refusal to say that waterboarding 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.
"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.
Sen. Joe Biden, D-Del., announced earlier this week that he would vote no.
Bush spoke about Mukasey's nomination before delivering a speech Thursday afternoon about the war against terrorism. He said he was concerned that some people "have lost sight of the fact that we are at war with extremists and radicals who want to attack us again." He said it was important that Congress approve the laws, financing and personnel necessary to combat U.S. enemies.
He said Senate's failure to confirm Mukasey promptly was "not good for the country."
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. Bush declined to say whether he agreed with the senators' approach.