AG won't probe CIA on torture laws
Says Justice Dept. memos signed off on waterboarding
WASHINGTON - Attorney General Michael B. Mukasey said yesterday that he will not allow the Justice Department to investigate whether CIA interrogators broke an antitorture law when they subjected detainees to simulated drownings, a controversial interrogation technique known as waterboarding that the Bush administration this week acknowledged it has used in the war on terrorism.
Testifying before the House Judiciary Committee, Mukasey said it would be inappropriate to investigate the interrogators because the Justice Department had issued secret memos concluding that President Bush's wartime powers made waterboarding and warrantless surveillance legally permissible.
"Essentially, it would tell people, you rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when and if the tenure of the person who wrote the opinion changes or, indeed, the political winds change," Mukasey said. "And that's not something that I think would be appropriate, and it's not something I will do."
The question of whether the Justice Department would open a criminal investigation into the CIA's interrogation practices arose earlier this week, after CIA director Michael V. Hayden told Congress that agency interrogators had subjected three detainees to waterboarding in 2002 and 2003.
A White House spokesman later confirmed Hayden's testimony, adding that Bush reserved a right to allow the CIA to use the technique again if circumstances warrant it.
The administration support for such interrogation techniques has been a flashpoint since the Abu Ghraib prison scandal in 2004, and Mukasey's confirmation was nearly derailed when he refused to say whether he thought waterboarding is legal in hearings last fall before the Senate Judiciary Committee.
The administration had previously sidestepped legal questions about waterboarding by refusing to discuss whether its classified interrogation program included the technique, which dates back to the Spanish Inquisition. Many in Washington - including Senator John McCain of Arizona, the presumptive 2008 Republican presidential nominee - consider waterboarding a form of torture.
The White House insists waterboarding is not torture. But the controversy surrounding Bush's counterterrorism policies on such matters as interrogation and surveillance has centered on whether the Justice Department's Office of Legal Counsel, a small group of politically-appointed attorneys who advise the president, has correctly interpreted the law.
After the terrorist attacks of Sept. 11, 2001, the office issued a series of secret opinions that provided legal cover for a broad range of Bush's counterterrorism policies, including surveillance without court permission, withholding Geneva Conventions abuse protections, and such interrogation techniques as waterboarding.
Most of the opinions were written by John Yoo, a former assistant deputy attorney general who, along with David Addington, Vice President Dick Cheney's top aide, was a chief architect of the administration's legal strategy for the war on terrorism. Yoo, who returned to the University of California at Berkeley's law school in 2003, relied upon aggressive theories about the president's alleged wartime power to bypass statutes and ratified treaties at his own discretion.
Many legal scholars have disagreed with Yoo's theories. In 2004, the administration retracted several of Yoo's opinions, including memos declaring that Bush could authorize harsh interrogations against terrorism suspects and warrantless surveillance on international communications and e-mails.
Mukasey, who became attorney general last fall after Alberto R. Gonzales resigned, said it would be wrong to investigate officials who relied upon such memos when waterboarding prisoners or conducting warrantless surveillance, in part because officials would stop trusting other legal opinions from the department.
But Representative William D. Delahunt, Democrat of Massachusetts, said Mukasey was essentially giving "immunity from any criminal culpability" to anyone who breaks a law, so long as the Office of Legal Counsel secretly signs off on the conduct - even if the legal advice was "inaccurate."
But Mukasey said government officials should be able to rely on the advice of the Justice Department without fear that they might face an investigation if department lawyers changed their position on what is permissible.
Tom Malinowski, the Washington advocacy director of Human Rights Watch, said he was "not surprised, but certainly disappointed" by Mukasey's decision not to investigate either the interrogators or the officials who authorized the waterboarding.
"They don't want to start asking these questions because the inevitable result of answering them is that . . . a crime was committed," he said.
Some legal scholars who are generally critical of the Bush administration's legal theories said they agreed with Mukasey that officials should not be prosecuted for conduct the Office of Legal Counsel had authorized.
"People who rely on good faith on an Office of Legal Counsel opinion should not be prosecuted even if it turns out that the opinion was wrong," said Dawn Johnsen, an Indiana University law professor who ran the office during the Clinton administration. "To prosecute a government employee who relied upon that opinion is not the way to fix the problem."
The way to fix that problem, she said, was through more aggressive congressional oversight - including by lawmakers insisting they be shown any memos that conclude that a president's constitutional powers trump a statute.
Yesterday, the chairman of the House Judiciary Committee, Representative John Conyers, Democrat of Michigan, asked to see the waterboarding memos, saying he and his colleagues had top-secret security clearances. Mukasey refused, saying the memos discussed a classified program. 