U.S. Chief Legal Officer Can't Say Whether Waterboarding is Torture. Also Won't Say If the Sun is Hot.

Mukasey Won't Comment on Waterboarding
The Associated Press

Wednesday 30 January 2008

Washington - Attorney General Michael Mukasey still won't say whether waterboarding is torture, a stance that is upsetting Senate Democrats who had threatened to derail his confirmation over the issue.

Mukasey's refusal to define waterboarding as illegal could provoke hostile questioning during a scheduled appearance Wednesday before the Senate Judiciary Committee. It was to be his first appearance there since being sworn in Nov. 9 and comes on the heels of a letter sent to the panel's chairman signaling he will not ever publicly conclude that waterboarding is illegal.

"I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law," Mukasey wrote in a three-page letter Tuesday to the panel's chairman, Sen. Patrick Leahy, D-Vt. "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."

The letter came as a response to senators' demands for Mukasey to clarify whether the interrogation tactic known as waterboarding should be banned by the United States. The tactic that involves strapping down a person and pouring water over his cloth-covered face to create the sensation of drowning.

At his confirmation hearings in October, Mukasey refused to define waterboarding as torture because he was unfamiliar with the classified Justice Department memos describing the process and legal arguments surrounding it. His non-answer reply Tuesday infuriated Democrats who accused the attorney general of being incapable of what they called making a simple legal decision.

Mukasey "seems constitutionally incapable of rendering judgment on a simple and straightforward legal question," Sen. Dick Durbin, D-Ill., who sits on the committee, said in a statement late Tuesday. "During his confirmation hearings, Mr. Mukasey promised repeatedly to end the stonewalling.... Let's hope he is more forthcoming in his testimony than he was in his letter."

In his letter, Mukasey concluded that current methods used by the CIA to interrogate terror suspects are lawful and that the spy agency is not using waterboarding on its prisoners. Beyond that, Mukasey said, it would be irresponsible for him to decide whether waterboarding is illegal since doing so could reveal details about the classified program.

Waterboarding was banned by the CIA and the Pentagon in 2006. Critics want the Justice Department to join other nations and outlaw waterboarding as illegal. But U.S. intelligence officials fear that doing so could make government interrogators - including those from the CIA - vulnerable to retroactive criminal charges or civil lawsuits.

Waterboarding is at the heart of a Justice Department criminal investigation over whether the CIA illegally or otherwise improperly destroyed videotapes in 2005 of two terror suspects being interrogated. The tapes showed harsh interrogations, including possible waterboarding, of suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri in 2002, when both suspects were held in secret CIA prisons overseas. They were destroyed as intelligence officials debated whether waterboarding should be declared illegal.