Mukasey Hints at Wider CIA Probe

The Washington Post - - National News - By Dan Eggen

A spe­cial Jus­tice De­part­ment probe into the de­struc­tion of CIA video­tapes could be ex­panded to in­clude whether harsh in­ter­ro­ga­tion tac­tics de­picted on the tapes vi­o­lated fed­eral anti-tor­ture laws, At­tor­ney Gen­eral Michael B. Mukasey tes­ti­fied yes­ter­day.

His tes­ti­mony in­di­cated that the CIA tapes probe, which Mukasey launched ear­lier this month, could go be­yond the tape de­struc­tion it­self to ex­am­ine the ac­tions of the cur­rent and for­mer CIA em­ploy­ees who car­ried out co­er­cive in­ter­ro­ga­tions.

His re­marks rep­re­sented a small con­ces­sion to Democrats on Capi­tol Hill, at a gen­er­ally con­tentious Se­nate Ju­di­ciary Com­mit­tee hear­ing. There, a stream of law­mak­ers as­sailed his re­fusal to say clearly whether one of the CIA’s most no­to­ri­ous in­ter­ro­ga­tion meth­ods — known as wa­ter­board­ing — was il­le­gal at the time it was done.

At one point, Sen. Ed­ward M. Kennedy (D-Mass.) asked: “Would wa­ter­board­ing be tor­ture if it was done to you?”

“I would feel that it was,” Mukasey replied.

But Mukasey said that does not mean it would be il­le­gal. “This is an is­sue on which peo­ple of equal intelligen­ce and equal good faith and equal ve­he­mence have dif­fered and have dif­fered within this cham­ber,” he said.

The hear­ing marked the end of a quiet pe­riod for the new at­tor­ney gen­eral, whose Novem­ber con­fir­ma­tion was op­posed by most Democrats be­cause of his re­fusal to take a stand on wa­ter­board­ing’s le­gal­ity. Mukasey re­placed Al­berto R. Gon­za­les, who quit af­ter months of con­tro­versy sur­round­ing the fir­ings of nine U.S. at­tor­neys and other scan­dals.

Dur­ing his tes­ti­mony, Mukasey said he saw no cause for launch­ing a sep­a­rate in­ves­ti­ga­tion into the use of wa­ter­board­ing and other se­vere in­ter­ro­ga­tion tac­tics by the CIA. But Mukasey also in­di­cated on sev­eral oc­ca­sions that the tapes probe could lead in­ves­ti­ga­tors in that di­rec­tion.

“There is an on­go­ing in­ves­ti­ga­tion into the de­struc­tion of the tapes that may well dis­close what was on them,” Mukasey said dur­ing a heated ex­change with Sen. Shel­don Whitehouse (D-R.I.), a for­mer U.S. at­tor­ney. “And it may also well dis­close whether it was any­thing fur­ther to be in­ves­ti­gated. I think we ought to await that.”

The ap­pointed pros­e­cu­tor on the case, Mukasey said later, “is go­ing to fol­low it where it leads, and that means wher­ever it leads.”

The out­come is far from clear, how­ever. The Bush ad­min­is­tra­tion has stead­fastly main­tained that its in­ter­ro­ga­tion tech­niques have been law­ful, and Mukasey stressed yes­ter­day that in­ves­ti­ga­tors should ex­tend great deference to intelligen­ce of­fi­cials en­gaged in pro­tect­ing the na­tion from ter­ror­ist at­tack.

Last night, Jus­tice De­part­ment spokesman Brian Roehrkasse said in a state­ment that noth­ing Mukasey “said sug­gests that any of those who re­lied in good faith upon the De­part­ment’s ad­vice would be sub­ject to crim­i­nal in­ves­ti­ga­tion.” CIA Di­rec­tor Michael V. Hay­den has said that the tapes, which recorded the in­ter­ro­ga­tions of two al-Qaeda cap­tives in 2002, were de­stroyed to pro­tect the iden­ti­ties of the CIA of­fi­cers in­volved. But other intelligen­ce sources have said agency of­fi­cials were also wor­ried the tapes could be used as ev­i­dence in crim­i­nal or con­gres­sional probes.

Mukasey said re­peat­edly he did not need to ren­der a le­gal opin­ion be­cause the tac­tic is no longer em­ployed by the CIA. He also ex­pressed con­cern that if he did so, “Peo­ple who are hos­tile to us can look to that as an au­thor­i­ta­tive state­ment of . . . how this coun­try ap­plies its laws and how it will con­tinue to ap­ply its laws.”

He also turned aside re­quests by sev­eral law­mak­ers to say whether it would be il­le­gal for an­other coun­try to sub­ject a U.S. cit­i­zen to wa­ter­board­ing over­seas. Al­though he said wa­ter­board­ing ap­pears to be pro­hib­ited by cur­rent law in some cir­cum­stances, he did not call it tor­ture, and he said its le­gal­ity would be a “far closer ques­tion” in other, un­spec­i­fied cir­cum­stances.

“I haven’t said that there are cir­cum­stances in which it’s clearly law­ful,” he re­sponded un­der ques­tion­ing by Sen. John Cornyn (RTex.).

Com­mit­tee Chair­man Pa­trick J. Leahy (D-Vt.) was among the mem­bers who com­plained. “It is not enough to say that wa­ter­board­ing is not cur­rently au­tho­rized,” Leahy said. “Trag­i­cally, this ad­min­is­tra­tion has so twisted Amer­ica’s role, law and val­ues that our own State De­part­ment, our mil­i­tary of­fi­cers, ap­par­ently even our top law en­force­ment of­fi­cer, are now in­structed by the White House not to say that wa­ter­board­ing is tor­ture and il­le­gal.”

Martin S. Le­d­er­man, a for­mer Jus­tice De­part­ment of­fi­cial who teaches law at Ge­orge­town Univer­sity, said Mukasey’s care­fully worded tes­ti­mony strongly sug­gests he agrees with ear­lier Jus­tice De­part­ment de­ci­sions that wa­ter­board­ing and other harsh tech­niques are in­deed le­gal. “It means they don’t think it’s tor­ture,” Le­d­er­man said.

Le­d­er­man also chal­lenged Mukasey’s as­ser­tion that it is best not to make a clear pub­lic state­ment about the mean­ing of U.S. laws. “Un­less and un­til the Sen­a­tors firmly re­ject this dan­ger­ous and rad­i­cal no­tion that the ‘lim­its and con­tours’ of our crim­i­nal laws and treaty obli­ga­tions must re­main se­cret, or un­til a new Ex­ec­u­tive dis­claims such a the­ory of ‘se­cret law,’ we will re­main hope­lessly stale­mated on the tor­ture is­sue,” Le­d­er­man said in a blog post­ing.

Jen­nifer Daskal, se­nior coun­tert­er­ror­ism coun­sel for Hu­man Rights Watch, asked, “Un­der what cir­cum­stances would the United States ever ac­cept as le­gal one of its cit­i­zens be­ing strapped to a board and suf­fo­cated with wa­ter?” But David B. Rivkin Jr., a for­mer Rea­gan-era Jus­tice De­part­ment of­fi­cial, said Mukasey had sen­si­bly avoided reeval­u­at­ing “very com­plex and close le­gal ques­tions” in­volv­ing a tech­nique no longer used by the CIA.

BY MELINA MARA — THE WASH­ING­TON POST

The Se­nate Ju­di­ciary Com­mit­tee’s rank­ing Repub­li­can, Arlen Specter (Pa.), left, and chair­man, Pa­trick Leahy (D-Vt.), pre­pare to ques­tion At­tor­ney Gen­eral Michael Mukasey, who again de­clined to say whether wa­ter­board­ing is tor­ture.

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