Democrats on the Senate Judiciary Committee sent a letter to Michael Mukasey expressing how “deeply troubled” they were at his “refusal to state unequivocally that waterboarding is illegal” on October 23, 2007. Asking Mukasey to clarify his answer as to whether waterboarding is “illegal under U.S. law, including treaty obligations,” the Senators noted that during the second panel on Mukasey’s confirmation, retired Rear Admiral John Hutson, former Navy Judge Advocate General and Dean of the Franklin Pierce Law Center, stated:

Other than, perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It’s a little disconcerting to hear now that we’re not quite sure where water-boarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

See the full Senate letter here (page 1, page 2, page 3). See also a Harvard Law School faculty letter on waterboarding sent to those same Senators prior to the confirmations hearings, which notes that waterboarding not only is illegal, it is criminal. Better than asking Mukasey whether he finds waterboarding illegal, the Senators should have asked him whether he thinks it criminal. There is still time to do so.

[UPDATE: Presidential candidate Bill Richardson has said Mukasey is not fit to be Attorney General unless he can say an unqualified “waterboarding is torture.”].