Attorney General Michael Mukasey on Wednesday refused once again to debate the legality of waterboarding and deflected questions from senators that sought his analysis on the controversial interrogation technique.
Testifying at an oversight hearing before the same Senate Judiciary Committee that hosted his confirmation hearing last year, Mukasey acknowledged that waterboarding is not among current CIA interrogation tactics. Because of that, he refused to talk about its past use on suspected high-ranking terrorists, to which the Bush administration has admitted.
"If this were an easy question, I would not be reluctant to offer my views on this subject," Mukasey said in his opening statement before a packed room of about 300 people. "There are some circumstances where current law would appear clearly to prohibit waterboarding's use. Other circumstances would present a far closer question."
When pressed to describe those "other" instances, Mukasey demurred repeatedly. Though he acknowledged senators' "strong" interest in seeking answers, Mukasey said it would be irresponsible for him to address their concerns.
"I'm not authorized to talk about what the CIA has done in the past," he said in response to a question posed by Sen. Joseph Biden Jr., D-Del.
Although torture dominated Wednesday's hearing, Mukasey covered a variety of issues. They included the Justice Department's criminal investigation of the destruction of CIA tapes, the potential closure of the facility at Guantanamo Bay (he is for it, if an alternative facility is found for the detainees), and the ongoing debate about granting immunity to telephone companies that assisted the government's warrantless surveillance program after 9/11.
Even the ranking Republican on the committee, Sen. Arlen Specter, R-Pa., appeared frustrated with some of Mukasey's answers -- and not just on the torture issue. When Specter asked Mukasey if President George W. Bush broke the law by launching the warrantless wiretapping program after Sept. 11, 2001, and sidestepping the Foreign Intelligence Surveillance Court, Mukasey said he wasn't sure.
"I don't know if he acted in violation of statutes," Mukasey said. When Specter noticed Mukasey began discussing the warrantless interception of foreign communications, he cut the attorney general off.
"I'm talking about wiretapping U.S. citizens in the United States," he said, raising his voice. "I'm not getting very far there. Let me move on."
Waterboarding -- the practice of subjecting a detained person to a simulated act of drowning -- has become a key issue for Mukasey since it nearly derailed his confirmation last fall. He also had to confront the topic when he launched a criminal investigation earlier this month into the destruction of the CIA videotapes that allegedly depicted questionable interrogation practices on al-Qaida suspects.
Committee Chairman Patrick Leahy, D-Vt., pointed out that if other government officials -- such as Director of National Intelligence Mike McConnell and former Homeland Security Secretary Tom Ridge -- personally consider waterboarding torture, maybe Mukasey could, too.
"Do you agree with them, and with me, for that matter, that waterboarding an American citizen anywhere in the world is torture and illegal?" Leahy asked.
"I understood what they said as their personal points of view," he said. "The one thing that separates me from them is that I'm the attorney general and they are not, that when I pronounce on the reach of general legal principles, that is taken as a statement of how far those principles go."
"So you disagree with them?" Leahy asked.
"They expressed their personal views," Mukasey responded.
Sen. Edward Kennedy, D-Mass., briefly congratulated Mukasey for launching a criminal inquiry into the CIA's destruction of interrogation tapes. Then, he dove right in.
Kennedy said Mukasey's equivocation on the issue of waterboarding (which follows a letter delivered to the Senate Judiciary Committee late Tuesday) was "like saying you're opposed to stealing but not quite sure whether bank robbery would qualify."
"Would waterboarding be torture if it was done to you?" Kennedy asked."I would feel that it was," Mukasey answered. He paused before continuing. "You say waterboarding is obviously torture," Mukasey said.
The attorney general then disputed the bank robbery analogy, saying that many intelligent people have taken opposite sides in the debate over the method's legality. "I should not go into ... the detailed way in which the department would apply general language to a particular situation," Mukasey told him.
"Under what facts and circumstances exactly would it be lawful to waterboard a person?" Kennedy tried again.
Mukasey declined to take up hypotheticals: "I would be ... imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities [that] may never occur."
Mukasey added there are specifically barred interrogation techniques under U.S. law, but waterboarding is not one of them. He also said the Senate had struggled with whether to include waterboarding on its list of banned interrogation techniques in 2006 and defeated an amendment to do so.
Waterboarding is banned by the Department of Defense, and the Army's field manual bars its use. However, the CIA is not bound by those rules and relies on the Justice Department's Office of Legal Counsel and its opinions for guidance.
Leahy used much of his time to plumb for information about the Justice Department's criminal investigation into the destruction of the CIA interrogation tapes.
Leahy asked Mukasey why the U.S. Attorney for the Eastern District of Virginia, Chuck Rosenberg, had recused himself from the investigation. As a result of the recusal, Mukasey appointed John Durham, a prosecutor from Connecticut, to head the investigation.
Mukasey said Rosenberg backed away "over an issue relating to a case he had" and because he "generally has a relationship with the CIA because they are located in his district." (The case in question is likely that of convicted al-Qaida operative Zacarias Moussaoui. The Justice Department filed a notice to the district court last fall that it had become aware of the existence of CIA interrogation tapes.)
Leahy asked whether Durham's team included prosecutors from Rosenberg's office. Mukasey said it did, but he said the members of the team were not tainted by the issues that led to Rosenberg's recusal.
"I'm not going to get into the details," Mukasey said.
Leahy asked when the Justice Department became aware that the tapes had been destroyed and whether officials there had viewed them. "That I do not know," Mukasey said.
Trying again, Leahy asked if that was something the attorney general should want to know, considering the possible implications.
"I didn't say I wouldn't look into it. I said I wouldn't disclose it here," Mukasey said evenly.
When asked whether the CIA or the White House had approached department officials about the advisability or legality of destroying the tapes, Mukasey said, "I've seen no evidence of that."
Leahy asked if Mukasey would allow Durham to testify before the Senate Judiciary Committee after he had finished his probe.
Mukasey said it wasn't the department's practice to deliver U.S. Attorneys to testify about criminal investigations.
"I don't see any reason why I'd make an exception here," Mukasey said.