By Dan Eggen
Washington Post Staff Writer
Thursday, January 31, 2008; A02

A special Justice Department probe into the destruction of CIA videotapes could be expanded to include whether harsh interrogation tactics depicted on the tapes violated federal anti-torture laws, Attorney General Michael B. Mukasey testified yesterday.

His testimony indicated that the CIA tapes probe, which Mukasey launched earlier this month, could go beyond the tape destruction itself to examine the actions of the current and former CIA employees who carried out coercive interrogations.

His remarks represented a small concession to Democrats on Capitol Hill, at a generally contentious Senate Judiciary Committee hearing. There, a stream of lawmakers assailed his refusal to say clearly whether one of the CIA's most notorious interrogation methods -- known as waterboarding -- was illegal at the time it was done.

At one point, Sen. Edward M. Kennedy (D-Mass.) asked: "Would waterboarding be torture if it was done to you?"

"I would feel that it was," Mukasey replied.

But Mukasey said that does not mean it would be illegal. "This is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed and have differed within this chamber," he said.

The hearing marked the end of a quiet period for the new attorney general, whose November confirmation was opposed by most Democrats because of his refusal to take a stand on waterboarding's legality. Mukasey replaced Alberto R. Gonzales, who quit after months of controversy surrounding the firings of nine U.S. attorneys and other scandals.

During his testimony, Mukasey said he saw no cause for launching a separate investigation into the use of waterboarding and other severe interrogation tactics by the CIA. But Mukasey also indicated on several occasions that the tapes probe could lead investigators in that direction.

"There is an ongoing investigation into the destruction of the tapes that may well disclose what was on them," Mukasey said during a heated exchange with Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney. "And it may also well disclose whether it was anything further to be investigated. I think we ought to await that."

The appointed prosecutor on the case, Mukasey said later, "is going to follow it where it leads, and that means wherever it leads."

The outcome is far from clear, however. The Bush administration has steadfastly maintained that its interrogation techniques have been lawful, and Mukasey stressed yesterday that investigators should extend great deference to intelligence officials engaged in protecting the nation from terrorist attack.

Last night, Justice Department spokesman Brian Roehrkasse said in a statement that nothing Mukasey "said suggests that any of those who relied in good faith upon the Department's advice would be subject to criminal investigation." CIA Director Michael V. Hayden has said that the tapes, which recorded the interrogations of two al-Qaeda captives in 2002, were destroyed to protect the identities of the CIA officers involved. But other intelligence sources have said agency officials were also worried the tapes could be used as evidence in criminal or congressional probes.

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.