Mukasey gets harsh reception on Capitol Hill

January 30, 2008 6:38:21 PM PST
Yes, waterboarding would feel like torture to him, Attorney General Michael Mukasey said.

But he also said that doesn't necessarily make it illegal.

"There are circumstances where waterboarding is clearly unlawful," Mukasey said Wednesday, trying to explain his views to skeptical Democrats during a five-hour Senate Judiciary Committee hearing. "What I have said is simply that there may be circumstances in which that presents a difficult question. I haven't said that there are circumstances in which it's clearly lawful."

"I'm not getting into any discussion, in the abstract, of circumstances in which it might be," Mukasey said.

His stand drew rebukes and even jeers from Senate Democrats who accused him of failing to rule out future use of the controversial interrogation method on al-Qaida detainees.

"It was like saying that you're opposed to stealing but not quite sure whether bank robbery would qualify," Sen. Edward M. Kennedy, D-Mass., said incredulously.

Waterboarding involves strapping a person down and pouring water over his cloth-covered face to create the sensation of drowning.

In his third month at the helm of the Justice Department, Mukasey stuck to the Bush administration's long-standing denial of identifying how terror suspects have been questioned by CIA interrogators. As he promised the Senate panel last fall he would do, Mukasey said he has reviewed Justice Department memos about the CIA's interrogation program and concluded that the spy agency doesn't currently engage in waterboarding.

Beyond that, Mukasey said he would not discuss the legality of the classified program for fear of tipping off U.S. enemies about interrogation methods.

"Would waterboarding be torture if it was done to you?" Kennedy asked.

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

Under needling questioning later, however, Mukasey didn't rule out the possible need for waterboarding terror suspects to save American lives.

"What about the circumstances where the information would save lives, many lives?" asked Sen. Dick Durbin, D-Ill. "Would that justify it?"

"Those circumstances have not been set out," Mukasey answered. "That is not part of the program. We don't know concretely what they are. And we don't know how that would work."

Mukasey added: "It is unresolved, because I have not been presented with a concrete situation."

Following a similar back-and-forth earlier, Sen. Joe Biden, D-Del., remarked: "I've never heard torture referenced in those ways. ... You're the first person I've ever heard say what you just said."

For the most part, Mukasey appeared unruffled by Democrats who grew increasingly exasperated with his hedging. The most emotion he showed throughout the five-hour hearing was tapping his fingers on his legal pad of paper to make a point to Durbin.

The Pentagon and the CIA both internally prohibited waterboarding in 2006. Intelligence officials privately acknowledge, however, that at least three al-Qaida suspects were waterboarded by U.S. interrogators in the years following the Sept.

11, 2001, terror attacks.

Sen. Jeff Sessions, R-Ala., decried any impression that the United States routinely engages in waterboarding.

"I think it's been an embarrassment to our nation from a lot of these hearings when we've suggested wide-scale abuse that is not true," said Sessions, coming to Mukasey's defense.

As the government's top law enforcement officer, Mukasey could potentially expose the Bush administration and its employees to criminal or civil charges or even international war crimes if he declares waterboarding illegal.

He also said Congress was partially to blame for failing to explicitly prohibit waterboarding by name as part of the 2006 Military Commissions Act. Senators from both parties, however, have said waterboarding is among the banned treatment of terror suspects that is described as "cruel, inhuman and degrading."

Elisa Massimino, Washington director of Human Rights First, said Mukasey's testimony left open the door for interrogators to waterboard in the future - even if the CIA does not do so today.

"He acknowledged that tomorrow all that could change," Massimino said. "The attorney general's evasive testimony today makes it impossible for the American people or the world to know what the United States means when it says that it does not torture."

Despite the emotional topic, Wednesday's hearing created little drama and drew none of the political fireworks that marked Mukasey's confirmation hearings in October or appearances last year by his predecessor, Alberto Gonzales.

Waterboarding dominated the hearing, but senators also peppered Mukasey with questions about laws to spy on terror suspects; closing the U.S. detention center in Guantanamo Bay, Cuba; a media shield law to protect reporters from naming their sources; and a host of other topics. In nearly every case, he sided with the Bush administration's position.

"I was hoping to see a little more evidence of independent judgment," said Sen. Russ Feingold, D-Wis. "But perhaps we're going to see that in the future."