Attorney General Won’t Investigate the CIA’s Use of Waterboarding

Our nation’s top law enforcement officer is not going to be investigating whether the CIA’s use of waterboarding was illegal. Isn’t investigating crime his job?

From today’s hearing in the House Judiciary Committee:

CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

MUKASEY: That’s a direct question, and I will give a direct answer.

No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.

For me to use the occasion of the disclosure that that technique was once part of the CIA program — an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so.

That would put in question not only that opinion, but also any other opinion from the Justice Department.Essentially, it would tell people: “You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change.” And that’s not something that I think would
be appropriate and it’s not something I will do.

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Published on February 7, 2008

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