Sen. Richard Durbin (D-Ill.) began his questioning by turning the words of Michael Mukasey's favorite author against him. Borrowing from George Orwell's "Politics and the English Language," Durbin told Mukasey that some of his words -- specifically, those employed in his discussion of the legality of waterboarding -- "have melted into the abstract."
(Seconds before, Durbin had unselfconsciously described the book to the committee: "It's dense. It's profound. I find it difficult to understand.")
After this initial slight, Durbin asked Mukasey to explain his earlier comment to Sen. Edward Kennedy (D-Mass.) that "reasonable" people had disagreed over the legality of the interrogation method.
“There have been people in this chamber who have disputed whether under circumstances it would be legal...to engage in these techniques," Mukasey said, referring to the Senate's authorization of the Detainee Treatment Act and language in the McCain amendment that some have described as subject to interpretation.
"The question is whether the Senate has spoken clearly enough in the legislation it has passed…" Mukasey added.
"Where is the lack of clarity in the McCain legislation?" Durbin asked. "The lead sponsors of this legislation have said that under the [Military Commission Act] waterboarding is a war crime."
Durbin pointed to what he saw as a hypocrisy of policy. The Justice Department has people on the ground in Iraq counseling the nascent government against sanctioning waterboarding, while the United States has approved its limited use, Durbin said.
"Do you see a problem with your ambivalence on this issue?" Durbin asked.
Mukasey replied that it was "not ambivalence" but "due caution" that prevented him from taking a position.
The committe has recessed until 2 p.m. We'll be back. Check our site for full coverage of the hearing.