By Dan Eggen
Washington Post Staff Writer
Wednesday, January 30, 2008
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.
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."