RENEE MONTAGNE, host:
Attorney General Michael Mukasey was on Capitol Hill yesterday, testifying before the Senate Judiciary Committee. That's never an easy task, but it's especially difficult when the subject everyone wants you to talk about is the subject you've decided not to discuss.
NPR's Ari Shapiro reports.
ARI SHAPIRO: The subject Mukasey wanted not to discuss was waterboarding, the practice of controlled drowning that the CIA has used on some high-level terrorism detainees since 9/11. It has become shorthand for the country's debate over torture, and Mukasey said the CIA doesn't do it anymore.
Attorney General MICHAEL MUKASEY (U.S. Department of Justice): Given that waterboarding is not part of the current program and may never be added to the current program, I don't think it would be appropriate for me to pass definitive judgment on the technique's legality.
SHAPIRO: But Democrats on the Senate Judiciary Committee said laws need to be clear and public, especially when it comes to torture. Here is Edward Kennedy of Massachusetts.
Senator EDWARD KENNEDY (Democrat, Massachusetts): Even though you claim to be opposed to torture, you refuse to say anything whatever, on the crucial questions of what constitutes torture and who gets to decide the issue. It's like saying that you're opposed to stealing but not quite sure whether bank robbery would qualify.
SHAPIRO: Mukasey said that comparison is unfair because it assumes waterboarding is torture.
Atty. Gen. MUKASEY: This is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed.
SHAPIRO: Mukasey refused to scrutinize the actions of his predecessors who authorized waterboarding because, he said, to do so sends a message to CIA interrogators that legal authorizations are only valid until the political winds start blowing in the other direction.
Rhode Island Democrat Sheldon Whitehouse said:
Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): The message you send, otherwise, is that I was only following orders is a fine response.
Atty. Gen. MUKASEY: It's not a fine response. It was a response at Nuremberg that was found unlawful, as we both know.
Sen. WHITEHOUSE: And yet it's the one that you're crediting right now. I had authorization and therefore I'm immune from prosecution. Is that where that analysis leads?
Atty. Gen. MUKASEY: No. If I had authorization and let's take a look at the authorization if the circumstances under which it was given and what was done at a whole wide range of variables.
SHAPIRO: Mukasey said the Justice Department is not currently analyzing those authorizations.
Atty. Gen. MUKASEY: I don't start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now.
SHAPIRO: Whitehouse later said to Mukasey, essentially open your eyes.
Sen. WHITEHOUSE: Read The New York Times, read The Washington Post, read what people have said on television. There's been a former CIA official who has been on the airwaves. If that's not enough to at least open the first red flag as to whether inquiries should go forward, I don't know what on earth could be.
SHAPIRO: Republican Senator Arlen Specter of Pennsylvania said he's frustrated that lawmakers have been almost completely unsuccessful trying to hold the executive branch accountable for its actions on the issues of torture, the CIA's destruction of interrogation videos, Whitehouse claims of executive privilege and the so-called terrorist surveillance program.
Senator ARLEN SPECTER (Republican, Pennsylvania): Congressional oversight has been so ineffective, notwithstanding Herculean efforts for the last three years. But the courts provide a balance, a separation of powers. Well, the only effective way of dealing with what is argued to be executive excesses is through the courts.
SHAPIRO: Yesterday, Mukasey urged Congress to keep the domestic spying program out of the courts and grant telephone companies that cooperated with the administration retroactive immunity for their actions.
Ari Shapiro, NPR News, Washington.