Looking over the statement Chuck Schumer just put out explaining his support for Michael Mukasey’s nomination for Attorney General, it seems to me the key graph is this one, which seems to put the onus for outlawing waterboarding torture on Congress.
“This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The Judge made clear to me that, were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the President would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.”
This is the part that will allow Schumer to argue that his support for Mukasey, in the face of growing Democratic opposition, is consistent with his initial rationale: that the most important thing for the next attorney general is that he be politically independent from the Bush administration. (It should also allow him, in his capacity as DSCC chairman, to argue that it’s that much more crucial that the Democrats expand their majority in the Senate in 2008.)