Mukasey Offers View on Waterboarding
Michael B. Mukasey, center, leaving the House chamber on Monday night after the president’s State of the Union address.
WASHINGTON — Attorney General Michael B. Mukasey said Tuesday that the harsh C.I.A. interrogation technique known as waterboarding was not clearly illegal, and suggested that it could be used against terrorism suspects once again if requested by the White House.
Mr. Mukasey’s statement came in a letter delivered Tuesday night to the Senate Judiciary Committee, which has scheduled for Wednesday its first oversight hearing for the new attorney general. The conclusions of the letter are likely to be a focus of severe questioning by Senate Democrats who have described waterboarding, which creates the sensation of drowning, as torture.
“If this were an easy question, I would not be reluctant to offer my views,” Mr. Mukasey wrote to Senator Patrick J. Leahy, the Vermont Democrat who heads the committee.
“But with respect, I believe it is not an easy question,” he said. “There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”
The letter did not define any of the circumstances.
Mr. Leahy said in a statement late Tuesday night that the letter “echoes what other administration officials have said about the use of waterboarding” but that it did not “answer the critical questions we have been asking about its legality.” He said that Mr. Mukasey “knows that this will not end the matter” and that he can expect “to be asked serious questions at the hearing tomorrow.”
The Bush administration has confirmed that the Central Intelligence Agency used waterboarding against a small number of Qaeda figures captured after the terror attacks of Sept. 11, 2001. The administration has said waterboarding was stopped several years ago in the wake of protests over the practice, in which suspects are placed on a flat surface, cloth or cellophane is put over their faces, and water is then poured over them.
The question of whether waterboarding amounts to torture nearly derailed Mr. Mukasey’s nomination for attorney general. At his Senate confirmation hearings in October, he refused to say whether he considered the technique to be torture or to be otherwise illegal. He said he needed to withhold judgment until he had received classified briefings on the subject if confirmed.
Several Democratic senators said then that his refusal to define waterboarding as torture had led them to oppose confirmation. He was confirmed on a vote of 53 to 40, and the 13-vote margin was the narrowest for a nominee to the post in more than 50 years.
Mr. Leahy and the nine other Democratic members of the Judiciary Committee wrote to Mr. Mukasey last week to insist again that he answer the question of whether waterboarding was torture. The attorney general suggested in comments to reporters at a news conference last Friday that he might never feel compelled to answer the question, no matter how often it was asked by lawmakers and the press.
In his letter Tuesday to Mr. Leahy, Mr. Mukasey said that since arriving at the Justice Department in early November, he had “conducted a thorough and careful review of the department’s legal analysis concerning the techniques that are currently authorized for use in the Central Intelligence Agency’s program for interrogating high-level Al Qaeda terrorists.”
He said that only “a limited set of methods is currently authorized for use in that program,” and added: “I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not, be used in the current program.”
“I understand that you and some other members of the committee may feel that I should go further in my review and answer questions concerning the legality of waterboarding under current law,” he said. “But I do not think it would be responsible for me, as attorney general, to provide an answer.” He added, “I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.”
He suggested that waterboarding might be reintroduced under the “defined process by which any new method is proposed for authorization” in the C.I.A.’s interrogation program.
“That process would begin with the C.I.A. director’s determination that the addition of the technique was required for the program,” he continued. “Then the attorney general would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed. Finally the president would have to approve of the use of the technique.”
Mr. Mukasey’s letter appeared to be an effort to deflect some of the harsher questions he may be asked on Wednesday, in his first public testimony on Capitol Hill since his confirmation battle last fall.
“I will answer those questions to the best of my ability, within the limits that I have described,” he said. “I recognize that those limits may make my task today more difficult for me personally. My job as attorney general is to do what I believe the law requires and what is best for the country, not what makes my life easier.”
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