Durbin Holds Up Filip’s Nomination

Posted February 4, 2008 at 6:43pm

Demanding that the new attorney general answer outstanding questions on torture and detainee abuse cases, Senate Majority Whip Dick Durbin (D-Ill.) has placed a hold on the nomination of Mark Filip to be deputy attorney general.

While stressing that he bears no personal grudge against Filip, Durbin said he will delay the nomination until Attorney General Michael Mukasey answers questions contained in three Durbin letters to the Justice Department dating back to 2005.

This week, Durbin is preparing to send a new missive that asks Mukasey to make good on a pledge he made during a Senate Judiciary Committee oversight hearing last week.

During the hearing, Durbin asked Mukasey to review 2005 legal opinions authorizing the use of harsh CIA interrogation tactics written by Steven Bradbury, interim head of Justice’s Office of Legal Counsel. President Bush stirred up a firestorm in late January when he renominated Bradbury to be assistant attorney general for the OLC, an office he has been informally running for two years. Durbin spearheaded the fight against Bradbury’s nomination.

In this case, Durbin’s hold is particularly significant as Filip is a district judge in Durbin’s home state (Chicago, specifically). Filip’s office referred questions about the hold to the White House press office.

“We continue to encourage the Senate to choose progress over political points and to provide Mr. Filip and all of the president’s nominees with a fair up-or-down vote,” said White House spokeswoman Emily Lawrimore.

The Justice Department has made no comment.

It is unclear how much support fellow Democrats will give to the Majority Whip in this particular effort. The Judiciary Committee approved Filip’s nomination, along with two other lower-profile ones, by unanimous consent last week. Still pending are the nominations of Kevin O’Connor to be associate attorney general and Gregory Katsas to be assistant attorney general in the civil division.

But it looks like Durbin can count on the most important Democrat to back him — Majority Leader Harry Reid (Nev.), who has the power to call, or refuse to call, Filip’s name to the floor at any time regardless of the hold.

“I expect Sen. Reid will give Sen. Durbin all the time he needs to work through his concerns with the nominee,” said a Democratic leadership aide.

Echoing other Democrats’ concerns, Durbin’s letters cover a range of topics from detainee renditions to the probe of the destruction of CIA videotapes depicting waterboarding, a simulated drowning technique that has become a flashpoint in the Democratic Congress’ oversight battle with the Bush administration.

In placing a hold on Filip, Durbin is taking aim at Mukasey, who replaced Alberto Gonzales in November. The Senate narrowly approved Mukasey’s nomination after he refused to classify waterboarding as torture during his confirmation hearings.

At a contentious oversight hearing last week, Mukasey maintained that waterboarding was not included in the “current” interrogation program. He repeatedly refused to label waterboarding as torture, arguing that whether it would be legal depended on the circumstances.

Durbin appeared outraged by Mukasey’s answers and pressed him to admit that the debate over whether waterboarding is illegal under all circumstances is “unresolved.”

“Do you see the problem with your ambivalence on this issue?” Durbin queried.

Filip was caught in Senators’ glare during his own confirmation hearing in December, when he too refused to give an answer on the waterboarding question, in that case in deference to Mukasey, his potential new boss.

In a Jan. 23 letter by all 10 Judiciary Democrats to Mukasey, the Senators said Mukasey’s answers had put Filip in a “difficult position.”

Durbin’s letters to the attorney general date back to Aug. 2, when Gonzales was still in office. The letters ask the attorney general whether it would be legal for enemy forces to subject Americans to certain harsh interrogation techniques, including “painful stress positions,” “forced nudity,” “mock executions” and waterboarding. It further asks whether the CIA should be governed by the Geneva Conventions in the treatment of terrorist suspects.

A Dec. 12 letter refers to a Chicago Tribune article about a terrorist suspect who was allegedly brought to Egypt through rendition. It asks if the interrogation of the suspect was videotaped and whether the CIA knows of videotapes of suspects interrogated in foreign jails.

A third letter was sent on Jan. 10 and renews an initial 2005 request for information about detainee abuse cases referred to the U.S. attorney’s office for the Eastern District of Virginia. Durbin inquired about the number of abuse investigations ongoing, whether there have been any new cases opened since January 2007 and whether those cases involve detainees who have been waterboarded.