Mukasey Holds Back on Torture Issue

Attorney General Won't Offer Senate Panel Definitive Opinion on Waterboarding

Attorney General Michael B. Mukasey said yesterday that the interrogation tactic known as waterboarding appears to be clearly prohibited by current law in some circumstances, but said that other circumstances would present "a far closer question."

In a three-page letter to Senate Judiciary Chairman Patrick J. Leahy (D-Vt.), however, Mukasey stopped short of offering a clearer legal opinion, because he said the CIA no longer uses the practice on prisoners.

The lawyerly response to demands from Congress was delivered in a last-minute letter before Mukasey's scheduled appearance today before the Judiciary panel. It is likely to anger Democrats who nearly derailed Mukasey's appointment over his refusal to render a firm legal judgment on waterboarding.

Mukasey said in the letter that waterboarding -- a simulated drowning meant to coerce disclosures by a resisting prisoner -- is not part of a "limited set of methods" being used by CIA interrogators. Mukasey said he has found the current methods, which he did not specify, to be legal.

"I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law," Mukasey wrote to Leahy. "I understand the strong interest in this question, but I do not think it would be responsible for me, as attorney general, to provide an answer."

Mukasey also wrote that "it is not an easy question" to determine whether the technique is lawful. "There are some circumstances where current law would appear clearly to prohibit the use of waterboarding," he wrote. "Other circumstances would present a far closer question."

In a statement last night, Leahy said Mukasey's response "echoes what other administration officials have said about the use of waterboarding" but does not answer "the critical questions we have been asking about its legality."

"Attorney General Mukasey knows that this will not end the matter and expects to be asked serious questions at the hearing tomorrow," Leahy said.

Mukasey wrote to Leahy that he will answer questions about waterboarding today "to the best of my ability, within the limits that I have described." He also said those limits might make his task "more difficult for me personally" but that he must "do what I believe the law requires."

"Despite disagreements we may have on this issue, I hope that the Committee will respect my judgment on this matter," he wrote.

Mukasey did not elaborate on what circumstances would present a close call on waterboarding. He also did not identify which laws the practice might violate, or explain his reference to "current" law.

Waterboarding was used in 2002 and 2003 by the CIA on three suspected terrorists at secret overseas prisons, and lawmakers have specifically sought Mukasey's judgment about whether it was legal then, under the laws that prevailed during those years. At the time, the Justice Department said it was, but current and former military lawyers, human rights experts, and international lawyers have challenged that position.