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Published on Saturday, January 26, 2008 by The New York Times

So Is Waterboarding Torture? Mukasey May Never Say

by Philip Shenon

WASHINGTON - Attorney General Michael B. Mukasey suggested Friday that he might never provide an answer to the question that threatened his Senate confirmation last year: Does the harsh interrogation technique known as waterboarding amount to torture?

"I didn't say I wouldn't answer it," he said at a news conference. "I didn't say that I would."

Mr. Mukasey's refusal to answer the question publicly during his Senate confirmation hearings last fall led several Democrats to vote against his nomination to run the Justice Department.

Bush administration officials have acknowledged that the Central Intelligence Agency subjected a small number of captured Qaeda leaders to waterboarding, which creates the sensation of drowning, after the Sept. 11 terrorist attacks but added that the agency had since ended the practice.

In only his second formal meeting with reporters since his confirmation, Mr. Mukasey said Friday that he was continuing to review the "current program" of interrogation methods used against terrorism suspects, as well as the legal opinions prepared in the Justice Department that authorized harsh techniques.

"That's what I said I would do," said Mr. Mukasey, a former federal judge in New York. "And I can't say any more, and I won't say any more."

Since administration officials say waterboarding is no longer used by the C.I.A., Mr. Mukasey's comments about his review of the "current" interrogation program suggests that he may not feel compelled to review the legality of waterboarding. In his confirmation hearings, he described waterboarding as "repugnant" but said he could not describe it as torture without knowing more about how it was carried out.

In a letter to Mr. Mukasey this week, all 10 Democrats on the Senate Judiciary Committee pressed him again for an answer to the question of whether waterboarding is torture and suggested it would be a focus of an oversight hearing next week at which the attorney general is scheduled to testify.

He can also expect to be questioned in the hearing about the White House's renomination this week of Steven G. Bradbury to run the Justice Department's Office of Legal Counsel as an assistant attorney general.

The new nomination was seen as a snub to Senate Democrats who had called for the White House to find another candidate for the job after the disclosure in October that Mr. Bradbury, who is running the office without Senate confirmation, had written classified legal memorandums in 2005 that authorized the use of interrogation methods that human rights groups define as torture.

"Steve Bradbury is one of the finest lawyers I've ever met," Mr. Mukasey said when asked if he supported the White House move. "I want to continue working with him."

In other comments, Mr. Mukasey rebuffed suggestions that the Justice Department had been in turmoil under his predecessor, Alberto R. Gonzales, who resigned last year in the wake of accusations that he had politicized decision-making at the department and removed several United States attorneys from their posts for partisan reasons.

Asked if he had found signs of turmoil, Mr. Mukasey said, "Based on what I've seen, no." Asked if reports of turmoil were a fabrication by news organizations, he replied with a wry smile and a hint of sarcasm, "I wouldn't dream of suggesting that."

He offered no criticism of a newly disclosed no-bid monitoring contract that was directed to former Attorney General John Ashcroft, as part of an out-of-court settlement between the department and a medical supply company in Indiana. Under the contract, arranged by the United States attorney in New Jersey, Mr. Ashcroft's lobbying firm will receive $28 million to $53 million for 18 months' work.

"As somebody on a government salary, I'm always surprised when somebody is being compensated at a level well beyond mine," Mr. Mukasey said, smiling again. "But distress? Beyond jealousy? No."

"Obviously people don't work for nothing," he said. "People deserve to be paid, especially people with talent and ability an experience. I'm not criticizing any of that."

He noted, however, that the Justice Department had been reviewing its procedures for choosing monitors and might set guidelines to prevent accusations of favoritism in the process.

Mr. Mukasey also revealed that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission's decision to reduce prison sentences for crack cocaine dealers.

"We need to see what the prospect is for getting legislation and on what terms," said Mr. Mukasey, who has criticized the commission's move since it could result in the early release of potentially violent criminals.

Under earlier guidelines, penalties for possession or sale of crack cocaine were tougher than similar offenses involving powder cocaine. Last year the sentencing commission reduced the disparities between crack and powder cocaine, and last month made that change retroactive.

© 2008 The New York Times

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