Attorney General Michael Mukasey refused Wednesday to define waterboarding as illegal torture, even while admitting that if he underwent the interrogation technique that he would “feel” it is torture.
Fending off pressure in a Senate Justice Committee hearing to categorically call waterboarding, which simulates drowning, as torture under US law, the top US legal official suggested that under certain conditions it could be legal, and said that learned people could disagree on the issue.
“I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality,” he said.
“There are some circumstances where current law would appear clearly to prohibit waterboarding’s use. Other circumstances would present a far closer question.”
In his first testimony to the committee since becoming attorney general on November 9, Mukasey said that torture is illegal under US statutes, but that waterboarding is not definitively covered by those statutes.
“There is a statute which says it is a relative issue,” Mukasey said to questioning by Senator Joe Biden.
He also said that the Central Intelligence Agency does not now use waterboarding and that the technique is “currently” not approved for its interrogation program.
However, he declined to say whether it had been used in the past.
“I am not authorized to talk about what the CIA has done in the past,” he told the Senate panel.
Senators were adamant that it is torture, with committee head Patrick Leahy insisting that waterboarding “has been recognized as torture for the last 500 years.”
“Would waterboarding be torture if it was done to you?” Senator Ted Kennedy asked Mukasey.
“I would feel it was,” Mukasey said, while insisting that that does not constitute a legal opinion.
“It’s like saying you are opposed to stealing but aren’t sure if bank robbery would qualify,” Kennedy said.
The hearing renewed pressure on the administration of President George W. Bush to categorically ban waterboarding and other interrogation techniques as torture.
As Mukasey testified, seven women sat in the audience wearing orange jumpsuits and black hoods resembling those of the US war on terror prison in Guantanamo Bay, Cuba, and waved signs saying “I will not be silent” and “No torture.”
Leahy said that the CIA has used the technique in the recent past, an assertion implicitly confirmed by Deputy Secretary of State John Negroponte, who was the US spy chief from 2005 to 2007, in a National Journal interview Monday.
“We’ve taken steps to address the issue of interrogations, for instance, and waterboarding has not been used in years,” Negroponte told the magazine.
Mukasey insisted that, based on briefings he has received since he became attorney general, that the CIA at the moment is not authorized to use the method in its interrogations.
But he said he would not make a categorical statement on it because he did not want to signal to US enemies what they would face in US hands.
“Any answer that I could give could have the effect of articulating publicly and to our adversaries the limits and the contours of generally worded laws that define the limits of a highly classified interrogation program,” he said.
The issue was central to the committee’s hearings late last year on Mukasey’s nomination to head the Justice Department.
At the time he declined to answer questions on it, saying he had not been briefed on CIA practices or the Bush administration’s legal reasonings.
Mukasey did offer that weighing whether waterboarding is torture or not invokes the issue of whether it “shocks the conscience.”
That standard “is essentially a balancing test of the value of doing something as against the cost of doing it.”
Under the “shocks-the-conscience” standard, he said, it would be torture if done in an interrogation simply to gain information for “historical circumstances” but not to save lives.