From The New York Times:
WASHINGTON — Attorney General Michael B. Mukasey said Wednesday that while he would consider it torture if he underwent the harsh Central Intelligence Agency interrogation technique known as waterboarding, the practice was not necessarily illegal, and he would not rule out its use in the future.
“Would waterboarding be torture if it were done to you?” asked Senator Edward M. Kennedy, Democrat of Massachusetts, glowering at Mr. Mukasey.
“I would feel that it was,” Mr. Mukasey acknowledged in the low monotone that he uses in virtually all public settings.
But the attorney general, a retired federal judge, would not be drawn into a larger conversation with Senator Kennedy or other Democrats over whether waterboarding might amount to torture if it was carried out on others, including American citizens held abroad.
The legality of waterboarding, in which a prisoner experiences a sensation of drowning, has been come under fierce debate since the acknowledgment by Bush administration officials that a small number of prisoners who were members of Al Qaeda had been subjected to it after the Sept. 11 terrorist attacks.
Mr. Mukasey said in a letter delivered to the Judiciary Committee on Tuesday night that he had been authorized by the White House to reveal that waterboarding was no longer being carried out and, for now, was considered an unapproved interrogation technique within the C.I.A. He repeated that assurance in his testimony Wednesday.
When the subject returned to waterboarding, there was especially tough questioning by Senator Charles E. Schumer, Democrat of New York, who had initially championed Mr. Mukasey’s nomination and has sometimes defended his performance when other Democrats have not.
The senator appeared exasperated by Mr. Mukasey’s refusal to say whether waterboarding was torture and should be outlawed, despite the attorney general’s statement during his confirmation hearings that he found the technique “repugnant.”
“I find it hard to understand how you personally, when asked for advice, would not be able to say that something that’s repugnant should be outlawed,” Mr. Schumer said. “You said it’s repugnant. I don’t understand how you can now say, Well, I have to ask a whole lot of other people.”
From CQ Politics:
Democrats on the panel said they were clearly disappointed. “I was hoping to see a little more evidence of independent judgment,” said Democrat Russ Feingold of Wisconsin.
For instance, Mukasey flatly refused Wednesday to say whether a controversial interrogation technique known as waterboarding, which simulates drowning, amounted to torture, but made clear he believes it could be appropriate in some scenarios.
“Given that waterboarding is not part of the current [CIA interrogation] program and may never be added to the current program, I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality,” Mukasey told the committee.
Chairman Patrick J. Leahy , D-Vt., was among those who were dissatisfied with the answers. “It is not enough to say that waterboarding is not currently authorized,” he said. “Torture and illegality have no place in America.”
The senators came to the hearing already irritated by the release late Tuesday of a letter from Mukasey to the committee telegraphing his intention not to offer a definitive view on waterboarding’s legality.
In the hearing, Mukasey relied on the fact that the administration does not currently condone waterboarding to argue that it would be hypothetical for him to say whether it is torture.
The answer angered Sheldon Whitehouse , D-R.I. “The message you send, otherwise, is that ‘I was only following orders’ is a fine response,” he shot back.