Mukasey Rejects Criminal Probe Into Waterboarding
http://www.washingtonpost.com/wp-dyn...020701542.html
By Dan Eggen
Washington Post Staff Writer
Thursday, February 7, 2008; 1:13 PM
Attorney General Michael B. Mukasey said this morning that waterboarding was deemed legal by the Justice Department at the time it was used by the CIA on three al-Qaeda captives, and as a result the Justice Department "cannot possibly" investigate whether a crime occurred.
In testimony before the House Judiciary Committee, Mukasey said that because waterboarding was part of a program approved by Justice lawyers, there is no way the department can open a criminal investigation into the practice.
"Waterboarding, because it was authorized to be part of a program ... cannot possibly be the subject of a Justice Department investigation," Mukasey said in response to questions from panel Chairman John Conyers Jr. (D-Mich.).
"That would mean that the same department that authorized the program would now prosecute someone for taking part" in it, he said.
Mukasey's remarks were a direct rebuff to demands from many leading Democrats this week that the Justice Department open a criminal probe into the CIA's use of waterboarding, an interrogation technique that simulates drowning in an attempt to force information from a prisoner.
The statements also appear to conflict with his testimony in the Senate last week, when Mukasey said on several occasions that a special U.S. attorney's probe into the CIA's destruction of videotapes could be expanded to include a probe of interrogation tactics shown on the tapes.
Mukasey's comments follow the Bush administration's unusual admission this week that waterboarding was part of the CIA's "enhanced interrogation" program. Although waterboarding has been the subject of fierce congressional debate for several years, the administration and CIA had steadfastly refused to publicly confirm its use.
CIA Director Michael V. Hayden told a Senate committee on Tuesday that the agency had used waterboarding on three al-Qaeda detainees in 2002 and 2003. Hayden said Tuesday that the tactic was used because of the "belief that additional catastrophic attacks against the homeland were inevitable" after the Sept. 11, 2001, terrorist strikes.
White House spokesman Tony Fratto said Wednesday that President Bush could approve the use of the tactic again and that such a decision would "depend on the circumstances," including whether "an attack might be imminent."
In waterboarding, a prisoner generally is strapped to an inclined board with his head lower than his feet. Water is poured over his mouth and nose, which are covered with cellophane or cloth, producing a sensation of drowning. The tactic, which dates to at least the Spanish Inquisition, has been prosecuted as torture by the U.S. military and condemned by the State Department when used by despotic regimes.
Waterboarding has become a signature controversy for Mukasey, a former federal judge whom the Senate nearly rejected as the new attorney general last fall over his refusal to say whether the tactic constituted illegal torture.
In testimony last week before the Senate Judiciary Committee, Mukasey said that he believed waterboarding would be torture if it were done to him. But he refused to say whether he thought the practice was illegal now that it was no longer being used by the CIA.
Mukasey also said last week that an ongoing probe into the CIA's destruction of interrogation videotapes could be expanded to include interrogation tactics, although a spokesman later attempted to limit the remarks. Sens. Patrick J. Leahy (D-Vt.) and Sheldon Whitehouse (D-R.I.) sent a letter to Mukasey today asking for a clarification of his Senate testimony.
Mukasey's appearance before the House Judiciary panel will continue this afternoon.
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