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, 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 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."
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.
In a terse statement released minutes after Mukasey's letter surfaced, Leahy called the attorney general's position a "last minute response" that merely parrots the Bush administration's longtime dodge on whether waterboarding is legal.
"It does not, however, answer the critical questions we have been asking about its legality," Leahy said in the statement. "Attorney General Mukasey knows that this will not end the matter and expects to be asked serious questions at the hearing tomorrow."
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.
Mukasey wrote that he would not publicly conclude that waterboarding is illegal because doing so could reveal too many "limits and contours" about the highly classified interrogation program to terrorists or other adversaries. He also noted that some senators resisted specifically banning waterboarding in 2006, when Congress passed the Military Commissions Act.
Congress has prohibited cruel, inhuman and degrading treatment of terror suspects. Sen. John McCain, R-Ariz., a key sponsor of the 2006 bill, has said he was personally assured by administration officials that waterboarding was prohibited under the new law.
The issue of waterboarding 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.
Waterboarding also is at the heart of a Justice Department criminal investigation over whether the CIA illegally or otherwise improperly destroyed videotapes in 2005 of two terror suspects being interrogated. The tapes showed harsh interrogations, including possible waterboarding, of suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri in 2002, when both suspects were held in secret CIA prisons overseas. They were destroyed as intelligence officials debated whether waterboarding should be declared illegal.
Critics want the Justice Department to join other nations and outlaw waterboarding as illegal. But U.S. intelligence officials fear that doing so could make government interrogators including those from the CIA vulnerable to retroactive criminal charges or civil lawsuits.
Ten senators demanded last week that Mukasey immediately clarify his stand on waterboarding. His non-answer Tuesday infuriated Democrats, who said he appeared unable to address what they called a simple legal question.
Mukasey "seems constitutionally incapable of rendering judgment on a simple and straightforward legal question," said Sen. Dick Durbin, D-Ill., in a statement.
But the attorney general said the matter was far too complicated to easily resolve.
"Reasonable people can disagree, and have disagreed, about these matters," Mukasey wrote Tuesday. "It is precisely because the issue is so important, and the questions so difficult, that I, as the attorney general, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never prevent themselves in the future."