In an October 31 article, The New York Times claimed that Michael B. Mukasey, President Bush's nominee for attorney general, had, in an October 30 letter to the Democrats on the Senate Judiciary Committee, "promised to review the legality" of an interrogation method known as waterboarding, if confirmed. The article, by reporter Scott Shane, reported that, Mukasey "declared Tuesday that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me' and promised to review the legality of such methods if confirmed." In fact, in his letter, Mukasey did not promise that, if confirmed, he would review the legality of waterboarding, but that he would "review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law." However, if Shane's reporting the day before is correct, Mukasey's promise appears not to cover waterboarding. Shane reported in an October 30 Times article that "former agency officials have said" that "[t]he C.I.A. stopped using waterboarding by the end of 2005." Additionally, according to Mukasey's letter, " 'waterboarding' cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act [DTA]."
While the Bush administration has reportedly stopped using waterboarding, it has reportedly asserted that it may still resume use of the technique. According to an October 4 New York Times article by Shane, David Johnston, and James Risen, "Relying on a Supreme Court finding that only conduct that 'shocks the conscience' was unconstitutional," a 2005 Justice Department opinion "found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said." The DTA, passed in 2005, banned the use of "cruel, inhuman or degrading treatment or punishment."
The Bush administration has officially refused to comment on whether specific interrogation techniques are being used.
Mukasey also wrote in his letter -- which came in response to an October 23 letter from Democrats on the Judiciary Committee -- that "[l]egal opinions should treat real issues," adding, "I have not been briefed on techniques used in any classified interrogation program conducted by any government agency. For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees."
From Mukasey's October 30 letter:
I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical. As a judge, I tried to be objective in my decision-making and to put aside even strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented. A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value.
I have said repeatedly, and reiterate here, that no one, including a President, is above the law, and that I would leave office sooner than participate in a violation of law. If confirmed, any legal opinions I offer will reflect that I appreciate the need for the United States to remain a nation of laws and to set the highest standards. I will be mindful also of our shared obligation to ensure that our Nation has the tools it needs, within the law, to protect the American people.
Legal opinions should treat real issues. I have not been briefed on techniques used in any classified interrogation program conducted by any government agency. For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees. Although I have not been cleared into the details of any such program, it is my understanding that some Members of Congress, including those on the intelligence committees, have been so cleared and have been briefed on the specifics of a program run by the Central Intelligence Agency ("CIA"). Those Members know the answer to the question of whether the specific techniques presented to me at the hearing and in your letter are part of the CIA's program. I do not.
I do know, however, that "waterboarding" cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act ("DTA"). That is because "waterboarding" and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense ("DOD") or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the Manual.
I emphasize in closing this answer that nothing set forth above, or in my testimony, should be read as an approval of the interrogation techniques presented to me at the hearing or in your letter, or any comparable technique. Some of you told me at the hearing or in private meetings that you hoped and expected that, if confirmed, I would exercise my independent judgment when providing advice to the President, regardless of whether that advice was what the President wanted to hear. I told you that it would be irresponsible for me to do anything less. It would be no less irresponsible for me to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances.
As I testified, if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique. I view this as entirely consistent with my commitment to provide independent judgment on all issues. That is my commitment and pledge to the President, to the Congress, and to the American people. Each and all should expect no less from their Attorney General.
From the October 31 New York Times article headlined, "Mukasey Calls Harsh Interrogation 'Repugnant' ":
In an effort to quell growing doubts in the Senate about his nomination as attorney general, Michael B. Mukasey declared Tuesday that waterboarding and other harsh interrogation techniques "seem over the line or, on a personal basis, repugnant to me" and promised to review the legality of such methods if confirmed.
But Mr. Mukasey told Senate Democrats he could not say whether waterboarding, which simulates drowning, was illegal torture because he had not been briefed on the details of the classified technique and did not want to suggest that Central Intelligence Agency officers who had used such techniques might be in "personal legal jeopardy."
It was unclear whether the answers would be enough to win endorsement from the Senate Judiciary Committee, where the torture issue has threatened to block the confirmation of Mr. Mukasey, who served for 18 years as a federal judge in New York.
Mr. Mukasey gave his answer in a four-page letter delivered Tuesday afternoon to Senator Patrick J. Leahy, chairman of the committee, and the other nine Democrats on it.