Mukasey: No Prosecution for Waterboarders

The attorney general says the interrogators were acting on DOJ's legal guidance.

Feb. 7, 2008— -- Attorney General Michael Mukasey told a congressional panel Thursday that CIA interrogators who waterboarded detainees would not be subject to prosecution because they were acting on legal guidance from the Justice Department.

Asked by House Judiciary Chairman John Conyers, D-Mich., whether he would start a criminal investigation into the agency's use of the controversial interrogation technique, which simulates drowning, Mukasey answered, "No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then."

Lawmakers broached the subject with Mukasey just days after CIA Director Gen. Michael Hayden admitted to Congress that the CIA had used the technique in the past.

"The CIA has not used waterboarding for almost five years. We used it against these three high-value detainees because of the circumstances of the time," Hayden told the Senate Intelligence Committee Tuesday.

"Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent," Hayden said.

Hayden explained his rationale for that revelation, telling the House Intelligence Committee Thursday that it was a "very difficult decision" to divulge the information, but that the "the question of waterboarding had become so much of the public discourse about the activities of the American intelligence community and that the public debate -- and we exist in a political context and are not immune to this broader political discussion -- is quite appropriate."

Hayden added that it was the agency's "strong belief that the political discussion that was going on was misshaped and misformed."

Hayden reiterated his stance that waterboarding was conducted under legal circumstances, but he did note that the technique is no longer included in the CIA's current program and that agency lawyers are not certain of its lawfulness.

Mukasey had also confirmed to the Senate Judiciary Committee last week that the CIA no longer used waterboarding in its interrogations.

Referencing Hayden's admission that his agency had used the technique in the past, Mukasey said, "For me to use the occasion of the disclosure that that technique was once part of the CIA program -- an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so," Mukasey said Thursday.

"That would put in question not only that opinion but also any other opinion from the Justice Department," Mukasey continued, adding that continuity in the department is key so criminal investigations don't crop up when "the tenure of the person who wrote the position changes or, indeed, the political winds change."

Rep. Bill Delahunt, D-Mass., tried to engage Mukasey, questioning how the interrogators could not be subject to investigation since they might have violated torture statutes and conventions.

"I find that position a new legal doctrine, if you will. The law is the law," Delahunt said.

Mukasey also dismissed additional calls for the appointment of special counsel to the inquiry into the destruction of CIA interrogation tapes.

In December, Hayden disclosed that the tapes, which were recorded in 2002, were destroyed three years later in 2005, a move that has been criticized by lawmakers who've said they weren't allowed proper oversight on the issue.

"I can't get into confidential discussions and executive matters. I can say that we looked initially to the U.S. attorney's office in the district where the CIA is located," Mukasey said, referring to the Eastern District of Virginia. "That U.S. attorney's office, by mutual agreement, recused itself, and we appointed John Durham to be the acting United States attorney for the purpose of … this case and to investigate this case."

Durham is the first assistant U.S. attorney in the District of Connecticut.

"The fact that one office recused itself does not in any way disqualify the department from conducting the investigation and to say that because this is a case that has gotten a great deal of attention necessarily means that we have to go outside the department and appoint a special prosecutor and so forth sends the wrong message in two respects," Mukasey continued.

ABC News' Kirit Radia contributed to this report.