Is it torture? He’s still not ready to say

Times Staff Writer

Atty. Gen. Michael B. Mukasey on Tuesday left open the possibility that the use of a controversial interrogation method known as waterboarding could be legal in certain cases under U.S. and international law.

But he declined to provide a definitive opinion, saying that the technique -- which evokes the sensation of drowning -- was not authorized for use by the CIA.

Mukasey is expected to be questioned extensively on waterboarding this morning in his first appearance as attorney general before the Senate Judiciary Committee.

In a letter to committee members released by the Justice Department on Tuesday night, Mukasey said he did not think it was wise to publicly address the lawfulness of waterboarding. That, he said, would tip off adversaries by defining “the limits and contours of generally worded laws” that circumscribe U.S. interrogation policies.


Whether waterboarding is legal, he said, “is not an easy question.”

“There are some circumstances where current law would appear clearly to prohibit the use of waterboarding,” he said. “Other circumstances would present a far closer question.”

The equivocation drew a swift rebuke from Sen. Patrick J. Leahy (D-Vt.), the committee chairman.

“This last-minute response from the attorney general echoes what other administration officials have said about the use of waterboarding,” Leahy said in a statement. “It does not, however, answer the critical questions we have been asking about its legality. Atty. Gen. Mukasey knows that this will not end the matter and expects to be asked serious questions at the hearing.”


The Bush administration’s refusal to reject waterboarding has fueled a debate in Congress about the limits of U.S. interrogation policy, and whether illegal torture has been condoned in the war on terrorism.

The CIA is thought to have used waterboarding in interrogations of a small number of suspected terrorists. The agency’s destruction of videotapes of interrogations where waterboarding is thought to have been used is the subject of a Justice Department investigation into possible obstruction of justice.

The issue almost doomed President Bush’s nomination of Mukasey as attorney general. At his confirmation hearing in the fall, Mukasey refused to call waterboarding illegal. That touched off a revolt, which led many Democrats to vote against him.

Mukasey promised that he would review Justice Department legal opinions on methods of interrogation, including waterboarding.

His decision to not answer the question -- because the technique is no longer being used -- will probably be viewed by critics as a dodge.

“I understand that you and some other members of the committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law,” he wrote to the Senate panel. “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.

“As I explained to the committee during my confirmation process, as a general matter, I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.”