The Wall Street Journal-20080130-Campaign -08- Mukasey Vies to Keep Out Of Waterboarding Debate

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Campaign '08: Mukasey Vies to Keep Out Of Waterboarding Debate

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WASHINGTON -- Attorney General Michael Mukasey, moving to pre-empt the toughest question he is likely to face at a Senate hearing today, said in a letter to senators that it wouldn't be "responsible" for him to say whether waterboarding is torture.

Mr. Mukasey, ahead of his first oversight hearing since taking over the helm of the Justice Department in November, confirmed that waterboarding isn't being used in the Central Intelligence Agency's current interrogation program of terror suspects. But he said that U.S. law doesn't make it easy to determine whether it is prohibited in all circumstances.

The former federal judge was narrowly approved by the Senate after stumbling over the waterboarding question in his confirmation hearings. The method, which involves producing a sensation of drowning in interrogation subjects, has been banned by the U.S. military. Critics claim it is torture and would violate U.S. and international law. However, Mr. Mukasey, during confirmation, declined to render an opinion, saying he hadn't yet been briefed on classified legal opinions and programs.

Now that he has been briefed, Mr. Mukasey says he has to restrict his responses "in the absence of concrete facts and circumstances."

Addressing Vermont Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee in the letter, Mr. Mukasey said, "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."

In particular, the attorney general said, "There are circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question. Reasonable people can disagree, and have disagreed, about these matters."

Other issues likely to come up include the Justice Department's criminal investigation of the destruction of interrogation videotapes by CIA officials, and the continuing internal probe into the firings of several U.S. attorneys.

The letter will likely do little to satisfy senators who are critical of the Bush administration's handling of interrogations.

Sen. Leahy said in a statement, "This last-minute response from the attorney general echoes what other administration officials have said about the use of waterboarding. Attorney General Mukasey knows that this will not end the matter."