Deputy AG Nominee: Waterboarding Is ‘Repugnant,’ But Can’t Say Whether It’s Torture

Today in his nomination hearing to be Deputy Attorney General, Mark Filip refused to explicitly say whether he believed waterboarding to be torture. He told Sen. Ted Kennedy (D-MA) that he found the interrogation technique “repugnant,” but couldn’t answer without taking “a long hard look at” the information:

KENNEDY: The key question is what constitutes torture. So the question that Judge Mukasey would say nothing at all on that question. So the same question to you: Do you consider waterboarding torture.

MARK FILIP: Senator, speaking personally, I consider waterboarding to be repugnant as it’s been reported in any of its various iterations. […]

That said, the Attorney General of the United States is presently reviewing that legal question. He determined that he wanted to have access to the classified information and memos about it. I don’t think I can or anyone who could be potentially considered to be his deputy could get out in front of him on that question while it’s under review.

Kennedy continued to press Filip, expressing surprise that he was dodging the issue:

I must say, everyone is familiar with the challenges that were out there for Mr. Mukasey when he refused to give an answer on that, and we thought you’d be able to give a response to this. You’ve been a judge, made the decisions, know what the issues are. It’s not a complicated issue in question, and it seems to be that you ought to be able to respond to it.

Filip simply replied that he awaits the opportunity to have “access to that information” so that he can “give candid advice to the Attorney General.

In October, the Senate Judiciary Committee was set to approve Attorney General nominee Michael Mukasey with little objection, until he obfuscated on waterboarding. Mukasey claimed that although waterboarding was “repugnant” to him on a “personal basis,” he was unable to strike a “legal opinion” without the “actual facts and circumstances.”

UPDATE: Later in the hearing, Sen. Dick Durbin (D-IL) told Filip that he was not “satisfied” with Filip’s answer on waterboarding:

I think it is a response consistent with Attorney General Mukasey. But consistent with Attorney General Mukasey’s response to this committee, he received the lowest confirmation vote of any Attorney General nominee in the last fifty years. And that’s where you find yourself at this moment, over the same issue.

Transcript:

KENNEDY: I just wanted to clarify an earlier response that you gave to Chairman Leahy, that was on the torture issue. I heard you say to the Chairman that torture is unconstitutional so it’s always prohibited. Judge Mukasey said the same thing to us. But everyone agrees with that point. The key question is what constitutes torture. So the question that Judge Mukasey would say nothing at all on that question. So the same question to you: Do you consider waterboarding torture.

MARK FILIP: Senator, speaking personally, I consider waterboarding to be repugnant as it’s been reported in any of its various iterations. The Attorney General — I also think it’s important for us to all be mindful that we have service members around the world often times in precarious places, and I don’t view that as some sort of abstract platitude. I had a grandfather who was in a German prisoner of war camp.

That said, the Attorney General of the United States is presently reviewing that legal question. He determined that he wanted to have access to the classified information and memos about it. I don’t think I can or anyone who could be potentially considered to be his deputy could get out in front of him on that question while it’s under review. But I will tell you that if I’m confirmed at a time such that that review is ongoing or he otherwise sought my advice on it, I would view it like any other legal question and take a long hard look at it, and if I had a view on it different from his, I would tell him so.

KENNEDY: Well, you’ve been a judge. You know what this issue is. This shouldn’t be something that’s going to take a lot more study about. I mean, you know what we’re talking about. Not only are you familiar with the concept but you know the arguments of it, and you know what the debate’s been about, and you know what the Geneva Convention. I mean, we ought to get — “repugnant” is not the answer that meets the requirement in terms of the various statutes. You’re not prepared to tell us in your own words whether you believe that waterboarding is torture, the same kind of techniques that the United States prosecuted Japanese for doing to Americans in World War II.

FILIP: I think Senator that I’d await having access to that information, and await an opportunity of confirm to give candid advice to the Attorney General on that before I answer a question he presently has under review.

KENNEDY: Well others will come, I’m sure, back to that, but I must say, everyone is familiar with the challenges that were out there for Mr. Mukasey when he refused to give an answer on that, and we thought you’d be able to give a response to this. You’ve been a judge, made the decisions, know what the issues are. It’s not a complicated issue in question, and it seems to be that you ought to be able to respond to it.