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NOMINEE¹S STAND AVOIDING TANGLE OF TORTURE CASES
By Scott Shane
New York Times
November 1, 2007
WASHINGTON - In adamantly refusing to declare waterboarding illegal, Michael
B. Mukasey, the nominee for attorney general, is steering clear of a
potential legal quagmire for the Bush administration: criminal prosecution
or lawsuits against Central Intelligence Agency officers who used the harsh
interrogation practice and those who authorized it, legal experts said
On Wednesday, Senator Patrick J. Leahy, Democrat of Vermont, the chairman of
the Senate Judiciary Committee, scheduled a confirmation vote for Tuesday
amid deep uncertainty about the outcome at the committee level. If Mr.
Mukasey¹s nomination reaches the Senate floor, moderate Democrats appear
likely to join Republicans to produce a majority for confirmation. But a
party-line vote in the Judiciary Committee, which seemed a possibility,
could block the nomination from reaching the floor.
The biggest problem for Mr. Mukasey remains his refusal to take a clear
legal position on the interrogation technique. Fear of opening the door to
criminal or civil liability for torture or abuse, whether in an American
court or in courts overseas, appeared to loom large in Mr. Mukasey¹s
calculations as he parried questions from the committee this week. Some
legal experts suggested that liability could go all the way to President
Bush if he explicitly authorized waterboarding.
Waterboarding is a centuries-old interrogation method in which a prisoner¹s
face is covered with cloth and then doused with water to create a feeling of
suffocation. It was used in 2002 and 2003 by C.I.A. officers questioning at
least three high-level terrorism suspects, government officials say.
Senator Arlen Specter of Pennsylvania, the committee¹s top Republican, said
at a hearing Wednesday that any statement by Mr. Mukasey that waterboarding
is torture could fuel criminal charges or lawsuits against those responsible
³The facts are that an expression of an opinion by Judge Mukasey prior to
becoming attorney general would put a lot of people at risk for what has
happened,² Mr. Specter said.
Mr. Specter, who said he was briefed on the interrogation issue this week by
the C.I.A. director, Gen. Michael V. Hayden, noted that human rights groups
had filed a criminal complaint on torture against Donald H. Rumsfeld, the
former defense secretary, while he was visiting France this month. Such
cases, based on the legal concept of ³universal jurisdiction² for torture
and certain other crimes, have proliferated in recent years, though they
have often posed more of an aggravation than a serious threat.
Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004,
wrote in his recent memoir, ³The Terror Presidency,² that the possibility of
future prosecution for aggressive actions against terrorism was a constant
worry inside the Bush administration.
³I witnessed top officials and bureaucrats in the White House and throughout
the administration openly worrying that investigators, acting with the
benefit of hindsight in a different political environment, would impose
criminal penalties on heat-of-battle judgment calls,² Mr. Goldsmith wrote.
Scott L. Silliman, an expert on national security law at Duke University
School of Law, said any statement by Mr. Mukasey that waterboarding was
illegal torture ³would open up Pandora¹s box,² even in the United States.
Such a statement from an attorney general would override existing Justice
Department legal opinions and create intense pressure from human rights
groups to open a criminal investigation of interrogation practices, Mr.
³You would ask not just who carried it out, but who specifically approved
it,² said Mr. Silliman, director of the Center on Law, Ethics and National
Security at Duke. ³Theoretically, it could go all the way up to the
president of the United States; that¹s why he¹ll never say it¹s torture,²
Mr. Silliman said of Mr. Mukasey.
Robert M. Chesney, of Wake Forest University School of Law, said Mr.
Mukasey¹s statements could influence the climate in which prosecution
decisions are made.
³There is a culture of concern about where Monday-morning quarterbacking
could lead to,² Mr. Chesney said. If Mr. Mukasey declared waterboarding
illegal, ³it would make it politically more possible to go after
interrogators in the future,² he said. ³Whether it would change the legal
equities is far less clear.²
Mr. Chesney and other specialists emphasized that prosecution in the United
States, even under a future administration, would face huge hurdles because
Congress since 2005 has adopted laws offering legal protections to
interrogators for actions taken with government authorization. Justice
Department legal opinions are believed to have approved waterboarding, among
other harsh methods.
Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said
Mr. Mukasey ³is hedging in the interest of protecting current and former
administration officials from possible prosecution,² either in other
countries or by a future American administration. ³What he should be doing
is providing a straightforward interpretation of the law,² she said.
Mr. Mukasey, 66, a retired federal judge from New York, referred to the
criminal liability issue several times in nearly 180 pages of written
answers delivered to the Senate on Tuesday. He said that while he personally
found waterboarding and similar interrogation methods ³repugnant,² he could
not call them illegal. One reason, he said, was to avoid any implication
that intelligence officers and their bosses had broken the law.
³I would not want any uninformed statement of mine made during a
confirmation process to present our own professional interrogators in the
field, who must perform their duty under the most stressful conditions, or
those charged with reviewing their conduct,² Mr. Mukasey wrote, ³with a
perceived threat that any conduct of theirs, past or present, that was based
on authorizations supported by the Department of Justice could place them in
personal legal jeopardy.²
If the judiciary committee were to split along party lines, the deciding
vote could go to Senator Charles E. Schumer, Democrat of New York, who first
suggested Mr. Mukasey to succeed Alberto R. Gonzales.
That would leave Mr. Schumer, ordinarily an enthusiastic partisan combatant,
with a difficult decision: whether to break with his fellow Democrats and
save Mr. Mukasey¹s nomination or to vote to kill the nomination of a man he
has highly praised.
On Wednesday, Mr. Schumer was uncharacteristically reluctant to discuss his
views. He avoided television crews waiting outside an unrelated press
conference and refused to answer questions about the judge¹s letter on
³I¹m not going to comment on Judge Mukasey here,² he said. ³I¹m reading the
letter, I¹m going over it.²
Dana M. Perino, the White House press secretary, said Democrats were
³playing politics² with the waterboarding issue, noting that Mr. Mukasey had
not been briefed on classified interrogation methods. ³I can¹t imagine the
Democrats would want to hold back his nomination just because he is a
thoughtful, careful thinker who looks at all the facts before he makes a
judgment,² Ms. Perino said.
Senator Orrin G. Hatch, Republican of Utah, offered a fierce defense of Mr.
Mukasey, who he said had spent ³40 days in the partisan wilderness,² on the
Senate floor. ³What kind of crazy, topsy-turvy confirmation process is
this?² Mr. Hatch asked.
But Senator Sheldon Whitehouse, Democrat of Rhode Island, declared on the
floor that he would vote against confirming Mr. Mukasey, whom he called a
good man and a brilliant lawyer, because of the torture question. ³I don¹t
think anyone intended this nomination to turn on this issue,² Mr. Whitehouse
Three Republicans who have denounced waterboarding wrote to Mr. Mukasey on
Wednesday, suggesting that they would support him but urging him to declare
waterboarding illegal after he is confirmed.
The senators, John McCain of Arizona, John W. Warner of Virginia and Lindsey
Graham of South Carolina, said anyone who engaged in waterboarding ³puts
himself at risk of prosecution, including under the War Crimes Act, and
opens himself to civil liability as well.²
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