Mukasey Hints at Wider CIA Probe

Senate Judiciary Committee ranking member Arlen Specter (R-Pa.), left, and Chairman Patrick J. Leahy (D-Vt.) prepare to question Attorney General Michael B. Mukasey, who again declined to say whether waterboarding is torture. (By Melina Mara -- The Washington Post)
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Mukasey said repeatedly he did not need to render a legal opinion because the tactic is no longer employed by the CIA. He also expressed concern that if he did so, "People who are hostile to us can look to that as an authoritative statement of . . . how this country applies its laws and how it will continue to apply its laws."

He also turned aside requests by several lawmakers to say whether it would be illegal for another country to subject a U.S. citizen to waterboarding overseas. Although he said waterboarding appears to be prohibited by current law in some circumstances, he did not call it torture, and he said its legality would be a "far closer question" in other, unspecified circumstances.

"I haven't said that there are circumstances in which it's clearly lawful," he responded under questioning by Sen. John Cornyn (R-Tex.).

Committee Chairman Patrick J. Leahy (D-Vt.) was among the members who complained. "It is not enough to say that waterboarding is not currently authorized," Leahy said. "Tragically, this administration has so twisted America's role, law and values that our own State Department, our military officers, apparently even our top law enforcement officer, are now instructed by the White House not to say that waterboarding is torture and illegal."

Martin S. Lederman, a former Justice Department official who teaches law at Georgetown University, said Mukasey's carefully worded testimony strongly suggests he agrees with earlier Justice Department decisions that waterboarding and other harsh techniques are indeed legal. "It means they don't think it's torture," Lederman said.

Lederman also challenged Mukasey's assertion that it is best not to make a clear public statement about the meaning of U.S. laws. "Unless and until the Senators firmly reject this dangerous and radical notion that the 'limits and contours' of our criminal laws and treaty obligations must remain secret, or until a new Executive disclaims such a theory of 'secret law,' we will remain hopelessly stalemated on the torture issue," Lederman said in a blog posting.

Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, asked, "Under what circumstances would the United States ever accept as legal one of its citizens being strapped to a board and suffocated with water?" But David B. Rivkin Jr., a former Reagan-era Justice Department official, said Mukasey had sensibly avoided reevaluating "very complex and close legal questions" involving a technique no longer used by the CIA.