Attorney General Michael Mukasey deflected sharp questions and pointed criticisms Wednesday, disappointing lawmakers who had hoped they could use his first hearing on Capitol Hill, since his confirmation, to tease out a legal stance on the harsh simulated drowning interrogation technique known as waterboarding.
Mukasey, who sent a letter to Senate Judiciary Chairman Patrick Leahy, D-Vt., late Tuesday in which he wrote "I do not think it would be responsible for me, as attorney general, to provide an answer" on the legality of waterboarding, spoke to the issue in his opening remarks.
"I have carefully reviewed the limited set of methods that are currently authorized for use in the CIA program and I've concluded that they are lawful," he said at the beginning of the nearly five-hour-long hearing.
"I'm aware that you and other members of the committee have asked specifically that I address the legality of waterboarding," Mukasey said. "I sought and I received authorization to disclose publicly, however, that waterboarding is not among the techniques currently authorized for use in the CIA program."
But the attorney general's prepared remarks and his letter, both sent to the committee in advance of the hearing, did not satisfy some members of the committee, who have pushed Mukasey for a specific declaration on the legality of waterboarding and long criticized the Bush administration's intelligence and surveillance policies.
Contending that "waterboarding has become the worldwide symbol for America's debate over the torture, and became the centerpiece of your confirmation hearing after you refused to take a position on whether it's lawful," Sen. Ted Kennedy, D-Mass., pressed Mukasey to make a determination on the issue.
"In fact, even though you claim to be opposed to torture, you refused to say anything whatever on the crucial questions of what constitutes torture, and who gets to decide the issue," Kennedy said. "It was like saying that you're opposed to stealing, but not quite sure whether bank robbery would qualify."
Kennedy said he wouldn't "get a straight answer" if he asked Muksey his stance on waterboarding's legality, but posed the question, "Would waterboarding be torture if it was done to you?"
"I would feel that it was," Mukasey answered.
But the attorney general said he'd differ with many of the matters Kennedy raised before he asked his question.
"You say that waterboarding is obviously torture. And you use the example of taking something — bank robbery, obviously, being stealing. That assumes, of course, the answer to the question, which is that waterboarding is, in fact, torture, just the same way that bank robbery is, in fact, stealing," Mukasey stated.
"I think there are numerous other things that I would argue with," he continued. "I simply point out that 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."
As for Leahy, he excoriated the role the Justice Department has taken in the war on terrorism, saying it has pushed legal limits into the shadows of the intelligence community.
"Among the most disturbing aspects of these years has been the complicity of the Justice Department, which has provided cover for the worst of these practices during those seven years," Leahy said. "Its secret legal memoranda that sought to define torture down to meaninglessness. They sought to excuse warrantless spying on Americans, contrary to our laws."
The chairman added, "It is not enough to say that waterboarding is not currently authorized. Torture and illegality have no place in America, and we should not delay to begin the process of restoring America's role in the struggle for liberty and human dignity around the world."
After noting that waterboarding is presently off the table for CIA interrogators, Mukasey said any attempt to add waterboarding back onto the CIA's list of approved interrogation techniques would take a multi-step process in which he would not be the lone decision maker.
Mukasey said the CIA director would have to request the technique's authorization, then take the request to the attorney general for examination. The president would then make a decision whether or not to authorize its use.
"Those steps may never be taken," Mukasey said. "But if they are, I commit to you today that this committee will be notified of the fact in the same manner as the Intelligence Committees."
As for the Justice Department probe of the CIA's 2005 destruction of tapes showing the interrogation of two high-level detainees, Mukasey said, "That investigation is going to go step by step, fact by fact, witness by witness, the same way that any other investigation goes. If it leads to showing motive, then it leads to showing motive. And I'm sure that'll be explored if it has to be."
Critics of the agency's decision to destroy the tapes have charged that the tapes were destroyed without proper Congressional oversight.