Democrats decry Mukasey’s waterboarding silence

Times Staff Writer

Senate Democrats assailed Atty. Gen. Michael B. Mukasey on Wednesday for refusing to offer an opinion on the legality of waterboarding, an interrogation method that many consider a form of illegal torture.

In often sharp exchanges, the lawmakers accused Mukasey of trying to protect the Bush administration, with one comparing him to a corporate lawyer trying to cover up the misdeeds of his client. Another accused him of playing word games and engaging in the sort of political double-talk that he said he would seek to avoid as attorney general.

“I would say, Mr. Attorney General, on the subject of waterboarding, that some of your words have melted into the abstract,” said Sen. Richard J. Durbin (D-Ill.), paraphrasing a critique of political speech by George Orwell, one of Mukasey’s favorite writers.

In his first appearance before the Senate Judiciary Committee since being confirmed by the panel in the fall, Mukasey agreed that waterboarding, in which water is forced into the nose or mouth to evoke the sensation of drowning, is repugnant to him on a personal level.


“Would waterboarding be torture if it was done to you?” Sen. Edward M. Kennedy (D-Mass.) queried.

“I would feel that it was,” Mukasey said.

But he stuck to a script that he gave lawmakers Tuesday night in a letter in which he said he would not publicly opine on the legality of waterboarding. He reasoned that such a public discussion would signal to American adversaries what sorts of practices were permitted under U.S. law. He also said such an exercise in legal analysis was pointless because waterboarding is no longer part of the authorized CIA interrogation program.

Mukasey said at the hearing that he had fulfilled a commitment to the Senate panel made in October that he would review the legal opinions underlying CIA interrogation policies. His nomination was almost derailed after he refused to declare that waterboarding was unlawful.

“I committed at my confirmation hearing to review the current program used by the CIA to interrogate high-value Al Qaeda terrorists and the legal analysis concerning that program,” Mukasey said. “I’ve kept my commitment to the committee. I have carefully reviewed the limited set of methods that are currently authorized for use in the CIA program, and I’ve concluded that they are lawful.”

The declaration did little to assuage Democrats who believe that the Bush administration’s refusal to renounce waterboarding under all circumstances has hurt the credibility of the United States in seeking an end to torture around the world.

“It is not enough to say that waterboarding is not currently authorized,” committee Chairman Patrick J. Leahy (D-Vt.) said. “The attorney general should be able to say it is wrong, it is illegal, it is beyond the pale.”

Waterboarding is believed to have been used on three suspected terrorists by the CIA in secret overseas prisons after the Sept. 11 attacks.


The issue is also relevant to an ongoing Justice Department investigation into the destruction of videotapes of CIA interrogations in which waterboarding is believed to have been used.

U.S. officials have defended all interrogation methods used as conforming with the law. But many experts, including some former military lawyers, believe waterboarding is clearly illegal.

“Your letter told us that the CIA does not currently use waterboarding. That fact had already been disclosed,” Kennedy said. “What your letter completely ignored is the fact that the CIA did use waterboarding and no one is being held accountable.”

Sen. Sheldon Whitehouse (D-R.I.) accused Mukasey of taking an overly narrow view of his responsibilities as attorney general and said he appeared to be acting as a corporate lawyer “unwilling to look back and dredge up past unpleasantness and risk potentially creating liability for the corporation.”


“You are the top law enforcement officer of the United States,” Whitehouse said. “And prosecutors do look back. They do dredge up the past in order to do justice.”

“I wear one hat,” Mukasey responded. “It says attorney general of the United States. There are a number of duties under that, but as far as I’m concerned, there is no divided responsibility or divided loyalty. There is one responsibility.”