An October 31 Associated Press report by staff writer Laurie Kellman about how "[p]rospects for Michael Mukasey's confirmation [as attorney general] ... dimmed after he again refused to equate waterboarding with torture" asserted that Mukasey had, in an October 30 letter to Democrats on the Senate Judiciary Committee, “pledged to study,” if confirmed, the legality of the interrogation technique known as waterboarding. However, if news reports that the government stopped the use of waterboarding in 2005 are correct, then Mukasey's promise appears not to cover waterboarding, because, as Media Matters for America has noted, Mukasey wrote that he would “review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law” [emphasis added].

An October 30 New York Times article reported that “former [CIA] officials have said” that "[t]he C.I.A. stopped using waterboarding by the end of 2005," and Mukasey's letter itself stated that waterboarding “cannot be used by the United States military” because it would violate a law -- the Detainee Treatment Act (DTA) -- passed in 2005.

While the Bush administration has reportedly stopped using waterboarding, it has also reportedly asserted that it may still resume use of the technique. According to an October 4 New York Times article, “Relying on a Supreme Court finding that only conduct that 'shocks the conscience' was unconstitutional,” a 2005 Justice Department opinion “found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.” The DTA banned the use of “cruel, inhuman or degrading treatment or punishment.” The Bush administration has officially refused to comment on whether specific interrogation techniques are being used.

From Mukasey's October 30 letter:

I emphasize in closing this answer that nothing set forth above, or in my testimony, should be read as an approval of the interrogation techniques presented to me at the hearing or in your letter, or any comparable technique. Some of you told me at the hearing or in private meetings that you hoped and expected that, if confirmed, I would exercise my independent judgment when providing advice to the President, regardless of whether that advice was what the President wanted to hear. I told you that it would be irresponsible for me to do anything less. It would be no less irresponsible for me to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances.

As I testified, if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. 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. I view this as entirely consistent with my commitment to provide independent judgment on all issues. That is my commitment and pledge to the President, to the Congress, and to the American people. Each and all should expect no less from their Attorney General.

From Kellman's October 31 AP report:

[Sen. Charles] Schumer [D-NY] has been uncharacteristically quiet, repeatedly refusing to comment on Mukasey's answer on waterboarding. Schumer, who drove the inquiry that pressured former Attorney General Alberto Gonzales to resign, has said that he has concerns about Mukasey's answers on torture and executive power. But Schumer has refused to comment on more than 170 pages of elaboration the nominee sent to the committee Tuesday night.

A retired federal judge, Mukasey told the committee on Tuesday that the interrogation method known as waterboarding is “repugnant to me,” and he pledged to study its legality if confirmed.

“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 the use of the technique,” he wrote to the committee's 10 Democrats.