US AG Michael Mukasey Clarifies Waterboarding Policy

On March 27 2008, US Attorney General Michael Mukasey delivered remarks to the Commonwealth Club. attended the address and submitted the following question for the Attorney General:

You avoided addressing whether waterboarding was torture during your Senate Judiciary Committee Hearing on October 18. You said "I think it would be irresponsible of me to discuss particular techniques with which I am not familiar." Have you considered becoming familiar the way former Assistant Attorney General Daniel Levin did in 2004, by subjecting yourself to waterboarding under military supervision at SERE?

The moderator altered the question significantly, but the Attorney General's response was nonetheless useful for clarifying the policy of the CIA and Department of Justice regarding the legality of the procedure:

  • Waterboarding is currently "out of the program" and is not an acceptable procedure under current interrogation guidelines.
  • Before being added to the program, specifics of the procedure would need to be documented by the CIA, approved by the Office of Legal Counsel, and approved by the President
  • .
  • The procedure would need to comply with a variety of statutes including the torture statutes and the Detainee Treatment Act. Waterboarding can still be illegal even if it doesn't fall under the legal definition of torture.

We were not allowed the opportunity to ask followup questions. Attendees of future Administration press conferences are encouraged to help us obtain the following answers:

Q1: Before it was "out of the program" was the procedure that "had actually been done to three people" approved in the manner described? (Documented by CIA, approved by Office of Legal Counsel, presented to the President.) Which President approved it? What "limits and safeguards" did it include?

Q2: Will there be any way to know if or when waterboarding is added to a list of future acceptable interrogation procedures? How can a concerned public determine the legal status of waterboarding in the future?

Q3: Can you describe the necessary details for any possible way to waterboard a prisoner that would not violate the torture statute or Detainee Treatment Act?

Full transcript and mp3 excerpt here.