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CIA interrogators have waterboarded terrorism detainees in the past. There is a process to authorize waterboarding in the future, but the CIA's interrogation program does not currently authorize waterboarding. And for that reason, Attorney General Michael Mukasey told a Senate committee today he will not discuss whether the practice is legal. That did not satisfy Democrats at the Judiciary Committee's oversight hearing, as NPR's Ari Shapiro reports.
ARI SHAPIRO: Committee chairman Patrick Leahy wanted to know why won't Mukasey discuss whether waterboarding is legal. After all, former Homeland Security Secretary Tom Ridge and Director of National Intelligence Mike McConnell have both said they believe the practice of controlled drowning is torture.
Mukasey told Leahy…
Mr. MICHAEL MUKASEY (United States Attorney General): The one thing that separates me from them is that I'm the attorney general and they're not.
SHAPIRO: Mukasey said when he makes a statement on the reach of legal principles, that's taken as the definition of those principles. Mukasey has said there are some circumstances where current law clearly would appear to prohibit waterboarding.
Other circumstances would present a far closer question, so Delaware Democrat Joseph Biden said…
Senator JOSEPH BIDEN (Democrat, Delaware): It appears as though whether or not waterboarding is torture is a relevant question.
SHAPIRO: Mukasey replied that the Detainee Treatment Act sets out a balancing test to determine whether an interrogation technique shocks the conscience.
Mr. MUKASEY: The heinousness of doing it, the cruelty of doing it balanced against the value.
Sen. BIDEN: Balanced against what value?
Mr. MUKASEY: The value of what information you might get.
SHAPIRO: So, Biden said, waterboarding to save humanity from nuclear weapons would be okay but waterboarding to find out someone's commanding officer would not? The senator said he finds that analysis unique.
Sen. BIDEN: I didn't think shocking the conscience had any relationship to the end being sought. I thought shocking the conscience had to do with what we consider to be basic societal values, things that we held dear, what we consider to be civilized behavior. You're the first person I've ever heard say what you just said.
SHAPIRO: Later in the hearing, Illinois Democrat Dick Durbin tried to clarify Mukasey's position.
Senator RICHARD DURBIN (Democrat, Illinois): I assumed that - and correct me please - that you were arguing that the use of such techniques to discover nuclear weapons would not shock the conscience.
Mr. MUKASEY: No. What I was saying was that the use of such techniques to discover information that could be not used to save lives and was simply of historical value would shock the conscience.
Sen. DURBIN: Well, that's half the answer, so let's go to the other half. What about the circumstances where the information would save lives, many lives?
Mr. MUKASEY: Those…
Sen. DURBIN: Would that justify it?
Mr. MUKASEY: Those circumstances have not been set out. That is not part of the program. We don't know concretely what they are, and we don't know how that would work.
SHAPIRO: Mukasey said one reason he's reluctant to discuss classified interrogation techniques is that it could tip off America's enemies as to how the U.S. applies its laws.
Wisconsin Democrat Russ Feingold said that argument seems inconsistent with the principle that laws are public.
Senator RUSS FEINGOLD (Democrat, Wisconsin): Every time we prosecute a crime in this country, we tip off people as to how we apply our laws.
SHAPIRO: So Feingold asks Mukasey, would you be reluctant to prosecute a government official accused of torture? Mukasey said he sees no inconsistency because the CIA program requires an elaborate set of authorizations to make sure that what goes on is not illegal. This was Mukasey's first oversight hearing as attorney general. Chairman Leahy said it would give some indication, quote, "whether we have begun a new chapter at the department or whether we are just finishing the last one."
Ari Shapiro, NPR News, Washington.