- The Washington Times - Friday, February 8, 2008

Attorney General Michael B. Mukasey told a House committee yesterday that he would not call for an investigation into the CIA’s use of “waterboarding” of three al Qaeda terrorists, saying the use of the interrogation technique was authorized by the department.

“Because it was authorized … to be part of a CIA program, [it] cannot possibly be the subject of a Justice Department investigation because that would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice,” he said.

He was responding to questions from House Judiciary Committee Chairman John Conyers Jr., Michigan Democrat, who again sought to get the attorney general to say publicly whether waterboarding, which simulates drowning, was legal and whether it constituted torture.

Earlier this week, CIA Director Michael V. Hayden acknowledged that on three occasions shortly after the September 11 attacks waterboarding was used on al Qaeda suspects Khalid Shaikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.

Mr. Hayden said waterboarding has not been used in five years. In December, the CIA said it destroyed videotapes showing the interrogations, a decision that has prompted a Justice Department investigation.

White House spokesman Tony Fratto said this week that President Bush could approve the use of waterboarding again and that any such decision would “depend on the circumstances,” including whether “an attack might be imminent.”

On Tuesday, National Intelligence Director Michael McConnell told a Senate committee that waterboarding remains a CIA interrogation technique, but its use would require the consent of the president and the legal approval of the attorney general.

Asked by Mr. Conyers whether he was ready to begin a criminal investigation into the legality of the confirmed use of waterboarding by CIA agents, Mr. Mukasey replied, “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.

“For me to use the occasion of the disclosure that the 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,” he said.

Mr. Mukasey said an investigation would put into question that opinion and any other opinion from the department.

“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,’ ” he said. “And that’s not something that I think would be appropriate, and it’s not something I will do.”

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