The Senate Judiciary Committee confirmation hearings on Michael Mukasey's nomination for attorney general demonstrated he cannot be relied upon to function as an independent leader at the Department of Justice. Mukasey claims he doesn't know what water boarding is, so he can't say if it constitutes torture. Mukasey made the incredible claims that "we do not torture" and "I don't think people are mistreated" at Guantánamo.

The torture and inhuman treatment of prisoners in U.S. custody is widely known. The newly leaked 2005 memos say the government is engaging in water boarding, head slapping and exposing people to frigid temperatures; the International Committee of the Red Cross said the treatment of prisoners in U.S. custody is tantamount to torture, and the U.N. Human Rights Commission concluded that force feeding Guantánamo prisoners amounts to torture. Water boarding, or simulated drowning, has long been considered torture. Rear Adm. John Hutson (USN Ret.) testified at the confirmation hearing, "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."

Michael Mukasey cannot be counted on to independently investigate the crimes of the White House. He refused to acknowledge the unconstitutionality of the President violating the Foreign Intelligence Surveillance Act. When asked about contempt charges against witnesses who refuse to respond to congressional subpoenas, Mukasey said he would refuse to follow the statute that requires a U.S. attorney to refer contempt citations to a grand jury.

The Senate should confirm Mukasey only if he pledges to appoint a special prosecutor to investigate the Bush administration, as the Democratically-controlled Congress did in 1973 after Nixon nominated Elliot Richardson for attorney general. Richardson agreed, he was confirmed, and then appointed Archibald Cox as special prosecutor. Cox's investigations and summary dismissal resulted in impeachment of Richard Nixon in the House Judiciary Committee followed by Nixon's resignation. Congress should once again stand up to the President when he breaks the law.

Mukasey has indicated his opposition to the appointment of a special prosecutor. Unless he agrees to appoint one, the Senate should refuse to confirm him as attorney general of the United States.