During the December 4 broadcast of National Public Radio's Morning Edition, justice correspondent Ari Shapiro asserted that Republican presidential candidate Sen. John McCain (R-AZ) -- who Shapiro noted was “tortured, as a prisoner of war in Vietnam” -- “attacked [former Massachusetts Gov. Mitt] Romney for refusing to say [during the November 28 Republican presidential debate] outright that the interrogation technique of controlled drowning known as waterboarding is torture." In his report, which discussed the views articulated by various presidential candidates on the issue of whether waterboarding constitutes torture, Shapiro also noted that “Attorney General Michael Mukasey almost was not confirmed based on his refusal to classify waterboarding as torture.” But at no point did Shapiro note that, notwithstanding McCain's “attack[]” on Romney, McCain supported Mukasey's nomination for attorney general despite Mukasey's refusal to assert whether he would classify waterboarding as torture.

When asked by Sen. Sheldon Whitehouse (D-RI) during his confirmation hearing if waterboarding is “constitutional,” Mukasey replied, “I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional.” Mukasey declined to answer whether waterboarding, in fact, constitutes torture. Further, in an October 30 written response to an October 23 letter sent by Democratic Senate Judiciary Committee members, which asked Mukasey to “clarify [his] views” on waterboarding, Mukasey again declined to say whether he considered waterboarding to be torture. He asserted that “torture violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official.” He also stated that "[a]s described in [the Democratic Judiciary Committee members'] letter, these techniques seem over the line or, on a personal basis, repugnant to me." However, Mukasey also wrote in his letter that "[l]egal opinions should treat real issues," adding, “I have not been briefed on techniques used in any classified interrogation program conducted by any government agency. For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees.” He also stated that if confirmed he would “review any coercive interrogation techniques currently used by the United States Government” and that “If after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique.”

Notwithstanding Mukasey's refusal to assert whether he would classify waterboarding as torture, in a November 1 press release McCain and Sen. Lindsey Graham (R-SC) stated that “we plan to support his nomination.” In the press release, McCain and Graham acknowledged that Mukasey had not publicly declared that waterboarding is torture in his responses to the Judiciary Committee: “Mukasey declined to comment specifically on the legality of waterboarding, deeming it a hypothetical scenario about which it would be imprudent to opine.” McCain and Graham added: “Once he is confirmed, however, we strongly urge that he publicly make clear that waterboarding is illegal and can never be employed.”

Similarly, during his November 4 appearance on CNN's Late Edition, McCain stated that, “in response to a ... written question, Mr. Mukasey said that he believes the president does not have the authority to violate existing law concerning treatment of prisoners. That means clearly that waterboarding is illegal.” McCain added that he and Graham had written Mukasey a letter saying “there is no doubt that once you get briefed you will declare ... this waterboarding as torture.” He later declared, “And so I am confident that he [Mukasey] will declare that practice illegal, and therefore I will vote to support his nomination.” However, as Media Matters has noted, in his October 30 letter Mukasey did not commit to review waterboarding if news reports are correct that the government stopped the use of waterboarding in 2005.

From the November 4 edition of CNN's Late Edition:

BLITZER: You say you're going to vote for the nomination, even though you're strongly opposed to torture, strongly opposed to waterboarding. Explain to our viewers why.

McCAIN: Well, first of all, I believe that presidents should have the right to appoint their nominee unless there is an overriding reason for them not to. The second thing is that in response to a question -- a written question, Mr. Mukasey said that he believes that the president does not have the authority to violate existing law concerning treatment of prisoners.

That means clearly that waterboarding is illegal. He also has said that he found -- finds waterboarding repugnant. And so Senator Graham and I have written him a letter saying then there is no doubt that once you get briefed, then you will declare torture -- this waterboarding as torture and therefore in violation of the Detainee Treatment Act, the War Crimes Act, the Military Commissions Act, and Common Article 3 of the Geneva Conventions.

And so I am confident that he will declare that practice illegal, and therefore I will vote to support his nomination.

McCain was not present for the Senate's November 8 vote to confirm Mukasey. On November 9, McCain and Graham wrote Mukasey a letter stating: “We are pleased that the Senate voted to confirm you last night as Attorney General of the United States. As you take office, we strongly urge you to immediately receive briefings on the CIA interrogation program and to publicly declare that the technique known as 'waterboarding' is illegal.”

From the December 4 edition of National Public Radio's Morning Edition:

McCAIN [audio clip]: I hope that we would understand, my friends, that life is not 24 and Jack Bauer.

SHAPIRO: That's Arizona Senator John McCain. He has been tortured, as a prisoner of war in Vietnam. And at last week's debate, McCain attacked Romney for refusing to say outright that the interrogation technique of controlled drowning known as waterboarding is torture.

[begin audio clip]

McCAIN: Well, governor, I'm astonished that you haven't found out what waterboarding is.

ROMNEY: I know what waterboarding is, Senator.

McCAIN: Then I am astonished that you would think that such a torture would be inflicted on anyone in our -- who we are held captive and anyone could believe that that's not torture.

[end audio clip]

SHAPIRO: In a speech the next day, McCain pointed out that Japanese soldiers in World War II were hanged for inflicting various forms of torture on American prisoners, including waterboarding. Like Romney, New York Mayor Rudy Giuliani has refused to explicitly rule out waterboarding. Giuliani has emphasized his strong stance on national security throughout the campaign. And in an interview last month with Bloomberg TV he said intensive questioning works.

GIULIANI [audio clip]: If I didn't use intensive questioning, there'd be a lot of mafia guys running around New York right now. And crime would be a lot higher in New York than it is. Intensive questioning has to be used, torture should not be used. The line between the two is a difficult one.

SHAPIRO: Giuliani has mocked the idea that sleep deprivation is torture, saying, “On that theory I'm getting tortured running for President of the United States.”

The U.S. Army Field Manual classifies sustained sleep deprivation as a form of mental torture. Since 9-11 the Bush administration has struggled with these questions in Iraq, Guantanamo Bay, and overseas CIA prisons. Attorney General Michael Mukasey almost was not confirmed based on his refusal to classify waterboarding as torture. When Huckabee was asked yesterday whether he thinks waterboarding is illegal, he said “Yes, I do.”

GOV. MIKE HUCKABEE (R-AR) [audio clip]: What we don't get is reliable information. What we do get is a very challenged soldier who has participated in something that goes against not only his or her own moral code, but against our own sense of justice in this country.

SHAPIRO: The Democrats running for president are much more uniform in their condemnation of harsh interrogations, and the leading Democratic candidates have indicated that depending on who the Republican nominee is, torture may well be an issue in the general election.