Mukasey Won't Call Waterboarding Always Illegal

ABC's Ariane DeVogue reports: For the first time, Attorney General Michael Mukasey has addressed the issue of whether waterboarding -- an interrogation technique that simulates drowning -- is illegal. He says that there are some circumstances where current law "would appear clearly to prohibit the use of the technique."  But in a letter to Democratic Senator Patrick Leahy (D-Vermont), chairman of the Senate Judiciary Committee, released hours before Mukasey's scheduled hearing before that committee, the Attorney General says that "other circumstances would present a far closer question."   In the letter Mukasey says that he has been briefed on the CIA interrogation program and has been told that waterboarding is "not currently authorized for use in that program."

Mukasey does not rule out a scenario that at another point in time waterboarding could again be authorized. The Department of Justice is investigating the destruction of video tapes by the CIA in November 2005 which depicted the use of the controversial technique against a high level detainee. 

In his letter, Mukasey outlines a "defined process" by which a new method could be authorized for use of waterboarding by a CIA program. The process would begin with the CIA Director's determination that the addition of the technique was required for the program.   Only at that point would Mukasey, as Attorney General, need to determine if the technique is lawful "under the particular conditions and circumstances proposed," he says.

Democrats reacted swiftly to Mukasey's after-hours letter. "This last-minute response from the Attorney General echoes what other administration officials have said about the use of waterboarding." said Leahy in a statement.  "It does not, however, answer the critical questions we have been asking about its legality."

Senators are expected to press Mukasey in the hearing Wednesday for more information  and explanation, including whether he considers waterboarding illegal if performed on Americans by others outside of US territory.   

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