Torture Nuances Stall Mukasey Nomination

WASHINGTON — Senate confirmation of Michael Mukasey as attorney general has snagged on a complex legal question of whether some Bush administration officials would face lawsuits or war crimes charges if, as Democrats insist, he defines waterboarding as torture.

Sidestepping a decision on the interrogation practice has threatened Mukasey's confirmation, and Senate Judiciary Chairman Patrick Leahy said Friday he'll vote against the former judge to head the Justice Department.

Legal experts said for Mukasey to call the simulated drowning interrogation technique a form of torture could amount to admitting that the U.S. engaged in war crimes. It could also commit him to prosecuting U.S. officials even before he takes office.

"You complicate your legal status by having any opinion out there," said Douglas Kmiec, a Pepperdine University law professor who was chief legal counsel at the Justice Department during the Reagan and George H.W. Bush administrations.

If Mukasey decides waterboarding is torture, Kmiec said, "there are going to be people arguably who are going to be within the scope of the problem and he will have to make a decision of whether or not to prosecute."

Nominated in September, Mukasey's confirmation was initially considered a sure thing until he repeatedly refused to say in Senate hearings whether he defines waterboarding as torture.

Torture is considered an international war crime, and waterboarding has been banned by the U.S. military. But CIA interrogators are believed to have used the technique on terror detainees as recently as a few years ago, and the Bush administration has resisted in publicly condemning it outright.

"These techniques seem over the line or, on a personal basis, repugnant to me," Mukasey wrote this week to the Senate Judiciary Committee. But he said he did not know enough about waterboarding to call it torture, and declined to judge the performance of intelligence officials "in a way inconsistent with the proper limits of any interrogation program they are charged with carrying out."

Democrats denounced the dodge, and Leahy on Friday joined four other senators on the Judiciary Committee who said they could not support Mukasey as a result.

"As an American, I believe we stand for certain high values," Leahy told reporters in Burlington, Vt. "One of them is that we don't torture, that it is illegal. And the attorney general should be willing to say that."

During waterboarding, a prisoner is placed on his back, with his legs slightly elevated and thin cloths or cellophane over his face before being doused with water. The technique prompts asphyxiation and panic that can lead to heart attacks as the prisoner fights against the feeling of drowning.

The Pentagon has explicitly banned military personnel from using waterboarding while interrogating suspected terrorists. In a letter Friday to the Senate Judiciary Committee, four retired military attorneys joined a host of top brass who have condemned the technique, writing "because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal."

French-Algerian journalist Henri Alleg, who suffered waterboarding 50 years ago, described it to reporters in Washington this week as "being next to dying, this terrible feeling of agony."

If Mukasey agrees that waterboarding amounts to torture, he is admitting the United States has willfully broken international law, said Robert F. Turner, associate director at the Center for National Security Law at the University of Virginia.

As a result, any of the other 193 nations that signed the United Nation's Convention Against Torture in 1984 could investigate or prosecute interrogators who used waterboarding against detainees. Top administration officials who authorized waterboarding — from President Bush down — also could face lawsuits, Turner said.

"The standard is, if they knew or should have known that war crimes were being committed and they had the power to stop them, then they're liable," said Turner, a former Reagan administration national security official. "They don't want to be on record in any way that would expose lower level employees who carried out that liability, or higher level people."

He added: "If we are dealing with good government employees who carried out instructions, it seems to me we have a duty to them to not make it easy for them to spend the rest of their life in a foreign jail."

In 2002, the Justice Department's then-chief counsel, Jay S. Bybee, wrote an opinion giving the CIA authority to use harsh interrogation techniques against terror suspects. The memo, which was later rescinded, limits the definition of torture to serious psychological or physical injury, including "organ failure, impairment of bodily function or even death."

The memo served as a legal protection for CIA interrogators and their superiors who could now face prosecution if Mukasey were to reverse it.

"If I were a CIA officer, I'd be really nervous," said Stephen Rickard, deputy director of Open Society Policy Center in Washington. "The CIA deserves clear rules and I think the officers who are being asked to do these things deserve clear rules. And I think the leadership who, either by words or implication, signal that they want these horrible things done ought to be held accountable."

John Yoo, now a law professor at the University of California, Berkley, helped write the controversial 2002 memos. He said the Justice Department should not go "about, willy-nilly, changing its opinions about what's legal or not."

Intelligence agents "will be worried that new people in government will change the ground rules on them and subject them to lawsuits," Yoo said. "They should be focused on fighting the enemy, gathering intelligence, and capturing or killing members of al-Qaida, not worrying about whether they will be prosecuted by their own government."

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Associated Press writer David Gram in Burlington, Vt., contributed to this report.

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