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Mukasey Holds Back on Torture Issue

Attorney General Michael B. Mukasey wrote that in some cases, waterboarding's legality would be a close call.
Attorney General Michael B. Mukasey wrote that in some cases, waterboarding's legality would be a close call. (By Susan Walsh -- Associated Press)

One opinion issued by the Justice Department's Office of Legal Counsel in May 2005 authorized a combination of painful physical and psychological interrogation tactics, including head slapping, sub-freezing temperatures and waterboarding, said current and former officials familiar with the issue.

A second document issued by the same Justice Department office in the summer of 2005 asserted that the interrogation practices approved for the CIA did not violate pending legislation to prohibit "cruel, inhuman and degrading" treatment, current and former officials have said.

Waterboarding generally involves strapping a prisoner to a board, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning. The practice dates at least to the Spanish Inquisition and has been prosecuted as torture in U.S. military courts since the Spanish-American War. The State Department has condemned its use in other countries.

Officials have said one of those waterboarded was alleged Sept. 11 mastermind Khalid Sheik Mohammed. The practice was halted after lawmakers raised secret concerns about the CIA's interrogation tactics, officials have said. Mukasey said in his letter to Leahy that he is "authorized to disclose publicly" that waterboarding is not now an approved U.S. interrogation technique.

The CIA's shadowy interrogation program, and its use of severe "enhanced interrogation techniques" on prisoners, has proven to be a pivotal issue for Mukasey. Most Senate Democrats voted against his nomination in November over his refusal to comment on the legality of waterboarding, giving him the lowest level of congressional support of any attorney general in half a century.

In December, the CIA disclosed that it had destroyed interrogation videotapes depicting harsh tactics used on two al-Qaeda prisoners in 2002. Mukasey ordered a preliminary inquiry into the destruction and, earlier this month, assigned a special U.S. attorney to conduct a full criminal investigation. But Mukasey also has rebuffed demands from some Democrats that the investigation be handled by a special prosecutor, and has urged Congress to hold back on its own inquiry while Justice Department prosecutors determine if a crime was committed.

In prepared remarks released Monday, before yesterday's letter on waterboarding, Mukasey said he has sought "to live up to the commitment I made to look for opportunities to work with the Congress" while cautioning that "we will not always agree."

"There are policy initiatives that the department supports that some members of this committee vigorously oppose, and vice versa," Mukasey said. "There also are situations where the interests of the executive branch and the legislature will be in some tension."

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