Mukasey won't weigh in on waterboarding

updated 8:14 p.m. ET Jan. 29, 2008

WASHINGTON - Attorney General Michael Mukasey said Tuesday he will refuse to publicly say whether the interrogation tactic known as waterboarding is illegal, digging in against critics who want the Bush administration to define it as torture.

In a letter to Senate Judiciary Chairman Patrick Leahy ahead of a hearing Wednesday, Mukasey said he has finished a review of Justice Department memos about the CIA's current methods of interrogating terror suspects and finds them to be lawful. He said waterboarding, which simulates drowning, currently is not used by the spy agency.

Since waterboarding is not part of what Mukasey described as a “limited set of methods” used by interrogators now, the attorney general said he would not rule on whether it 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 his three-page letter to 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.”

'Not an easy question'
The attorney general added: “If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

The letter does not elaborate on what the other circumstances are.

Mukasey’s letter was sent on the eve of his appearance at a Justice Department oversight hearing chaired by Leahy. It is Mukasey’s first appearance before the committee since he took office Nov. 9.

Waterboarding is an interrogation tactic that involves strapping down a person and pouring water over his cloth-covered face to create the sensation of drowning. The practice was banned by the CIA and the Pentagon in 2006.

The issue briefly snarled Mukasey’s confirmation hearings by the same Senate committee last October. At the time, 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.

He promised then, however, to review the memos if confirmed and return an answer to the Senate Judiciary Committee. Tuesday’s letter represents that response.

'More forthcoming' replies hoped for
In remarks prepared for the much-anticipated hearing, obtained Tuesday before Mukasey’s letter was released, Leahy said he expects the attorney general to answer senators' questions.

"I hope that he is prepared to be more forthcoming in response to the questions of the senators on the committee than his predecessor, who left hundreds of questions unanswered and allowed the administration to exercise unchecked executive power," said Leahy.

In years past, the Justice Department’s “secret legal memoranda have sought to define torture down to meaninglessness,” said Leahy. “I trust that today, Attorney General Mukasey will answer our questions and speak not as merely the legal representative of this president, but as the attorney general for all Americans.”

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