The Bush Administration's choice to for U.S. Attorney General, Michael Mukasey, refused to address the legality of the interrogation technique known as waterboarding, skirting a potential legal watershed regarding prosecution against Central Intelligence Agency officers. At confirmation hearings before the Senate Wednesday, Sen. Arlen Specter, R-Penn., said that questioning directed at declaring waterboarding a form of torture would bring in a barrage of legal proceedings against interrogators. Mukasey referred to the issue several times in his written answers to Senate questioning, saying while he found the tactic “abhorrent” he was hesitant to call it illegal.
Water-boarding is a long-used interrogation technique where a detainee's face is covered in a cloth. The face is then doused with water, causing a sensation similar to drowning. Central Intelligence Officers said they used the procedure in at least three occasions from 2002 to 2003.
The “torture memo” issued in 2002 declares interrogation techniques were permissible by law so long as they didn't result in pain comparable to organ failure or death. A later briefing released by the Justice Department in 2004 said that “Torture is abhorrent both to American law and values and to international norms.” But a later briefing in February 2005 expands on that nature of torture. Based on a 1952 Supreme Court decision, Rochin v. California, the 2005 brief declares only behavior that “shocks the conscious” was unconstitutional. Using this definition, the Justice Department and the Bush administration are reluctant to declare waterboarding a form of torture.
In his written statement to the Senate, Mukasey, 66, said “I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field … with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.”
The Senate is expected to vote on Mukasey's nomination Tuesday.
