Justice Dept. 'Cannot' Probe Waterboarding, Mukasey Says

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), left, greets Attorney General Michael B. Mukasey before a hearing on waterboarding.
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), left, greets Attorney General Michael B. Mukasey before a hearing on waterboarding. (By Stephanie Kuykendal -- Bloomberg News)
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By Dan Eggen
Washington Post Staff Writer
Friday, February 8, 2008

The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA's use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a "good thing" that the CIA was able to learn what it did from those subjected to the practice.

The remarks reflected a renewed effort by the Bush administration to defend its past approval of the interrogation tactic known as waterboarding, which some lawmakers, human rights experts and international lawyers have described as illegal torture.

Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.

"That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," he said.

New controversy about waterboarding has swirled in Washington since CIA Director Michael V. Hayden confirmed Tuesday that the CIA used the tactic on al-Qaeda prisoners Khalid Sheik Mohammed; Zayn al-Abidin Muhammed Hussein, commonly known as Abu Zubaida; and Abd al-Rahim al-Nashiri at a secret detention site. In congressional testimony, he defended the treatment as necessary to obtain information about potential terrorist attacks.

The next day, White House spokesman Tony Fratto provoked criticism from lawmakers and others when he said that even though the CIA no longer uses waterboarding, it could do so again with Bush's approval, which would "depend on the circumstances," including whether "an attack might be imminent."

Independent legal experts have said the use of a tactic meant to coerce detainees to talk by making them fear death through drowning is barred by U.S. laws and treaties under all circumstances, a viewpoint the administration has made clear it rejects. At the same time, Fratto and Hayden yesterday played down the idea that the administration could freely order more simulated drownings.

"In my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute," Hayden told the House intelligence committee.

In 2006, Hayden said, he officially prohibited CIA operatives from using waterboarding after a Supreme Court decision forcing the administration to respect a Geneva Conventions article barring "outrages upon personal dignity" and "humiliating and degrading treatment" of U.S. detainees. He said he doubts the practice would be considered legal now.

Fratto said the tactic could not be used again unless the president obtained new advice about its legality, personally approved it and notified Congress. "I'm not aware that anyone has plans to use it in this program," Fratto said.

He said that although lawyers had determined that waterboarding was legal when it was used in 2002 and 2003, new laws passed since then would have to be considered. "We have made clear that the law has changed. That has given greater clarity to these questions," he said. But he declined to rule it out, saying, "We are not going to speculate on the future."

Cheney added to the cacophony yesterday when he said of those subjected to special CIA's interrogation methods, "It's a good thing we had them in custody, and it's a good thing we found out what they knew." Speaking to the Conservative Political Action Conference in Washington about multiple counterterrorism policies Bush has approved, he added: "Would I support those same decisions again today? You're damn right I would."

The Bush administration's sudden willingness to discuss waterboarding -- after five years of official silence about it -- follows the launch of a special U.S. attorney's investigation into the CIA's destruction in 2005 of interrogation videotapes that included footage of waterboarding and other harsh techniques.

Many Democrats this week have called on Mukasey to open a separate criminal investigation to focus on the CIA's use of waterboarding and whether it violates U.S. anti-torture laws. Although Mukasey suggested in testimony last week that the tapes investigation could include that subject, his position has since appeared to have hardened.

Waterboarding, he told the House committee, "cannot possibly be the subject of . . . a Justice Department investigation" because its use was approved by the Justice Department's Office of Legal Counsel. Mukasey made a parallel argument about the National Security Agency's warrantless wiretapping program, saying the Justice Department could not investigate that program because it was approved at the outset by the department's lawyers.

Larry Cox, executive director of Amnesty International USA, called for an outside investigator. "Everyone in the world knows that waterboarding is torture and illegal," Cox said. "The U.S. government admits having done it. Yet the highest law enforcement official in the land refuses to investigate this scandal."

In waterboarding, a prisoner generally is strapped to an inclined board with his head lower than his feet. Water is poured over his mouth and nose, which are covered with cellophane or cloth, producing a sensation of drowning. The tactic, which dates to at least the Spanish Inquisition, has been prosecuted as torture by the U.S. military and condemned by the State Department when used by despotic governments.

Waterboarding has become a signature controversy for Mukasey, a former federal judge whom the Senate nearly rejected as attorney general last fall over his refusal to say whether the tactic constituted illegal torture.

In his appearance last week before the Senate Judiciary Committee, Mukasey said waterboarding would be torture if it were done to him. But he declined to say whether it was legal, saying that was irrelevant because the practice is no longer used.

Senate Majority Whip Richard J. Durbin (D-Ill.), who had threatened this week to hold up the appointment of a deputy attorney general over the controversy, said yesterday he would allow the vote to proceed, but he decried the administration's policy.

Durbin said "CIA agents have been put in jeopardy by misguided counsel from the Justice Department" on interrogation practices, and Mukasey's "refusal to repudiate waterboarding does tremendous damage to America's values and image in the world and places Americans at risk of being subjected to waterboarding by enemy forces."

Staff writer Peter Baker contributed to this report.

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