WASHINGTON – CIA Director Michael Hayden cast doubt on the legality of waterboarding on Thursday, a day after the White House said the harsh interrogation tactic has saved American lives and could be used in the future.
Hayden told the House Intelligence Committee that he officially prohibited CIA operatives from using waterboarding in 2006 in the wake of a Supreme Court decision and new laws on the treatment of U.S. detainees.
He said the agency has not used waterboarding for "just a few weeks short" of five years. He officially prohibited it from CIA interrogations in 2006.
"It is not included in the current program, and in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute," Hayden said.
Though now legally questionable, Hayden said waterboarding was legal in 2002 and 2003, a time period when the technique was used to interrogate al Qaeda detainees.
"All the techniques that we've used have been deemed to be lawful," he said.
Hayden's comments came just hours after Attorney General Michael Mukasey, in a separate House hearing, said the Justice Department would not investigate whether U.S. interrogators broke the law when waterboarding accused terrorists following the Sept. 11 attacks.
"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 Office of Legal Counsel — and was found to be permissible under the law as it existed then," Mukasey told the House Judiciary Committee.
Calling waterboarding an "odious practice," House Judiciary Chairman John Conyers, D-Mich. asked Mukasey point-blank if he would "start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal."
"No, I am not," Mukasey answered bluntly.
He said the Justice Department could not investigate or prosecute people for actions that it had earlier authorized.
Mukasey recently finished a nearly four-month review of classified Justice Department memos about the CIA's interrogation program, and concluded the spy agency doesn't currently engage in waterboarding. Beyond that, he has refused to discuss the legality of the interrogation technique.
Waterboarding involves strapping a person down and pouring water over his or her cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world.
Critics say waterboarding violates the U.N. Convention Against Torture and U.S. laws outlining legal treatment of detainees. The Justice Department has long resisted exposing the Bush administration and its employees to criminal or civil charges or even international war crimes waterboarding is declared illegal.
But the White House on Wednesday defended the use of waterboarding, saying it could still be legal in some situations. White House spokesman Tony Fratto said President Bush could authorize waterboarding for future terrorism suspects in certain situations, including "belief that an attack might be imminent."
The president would first consult with the attorney general and intelligence officials before authorizing its use, Fratto said.
For the first time, the Bush administration publicly acknowledged the CIA waterboarded detainees following the 9/11 terrorist attacks when Hayden testified the technique was used on Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri in 2002 and 2003.
The House Judiciary Committee's top Republican, Rep. Lamar Smith of Texas, said he hopes the "administration will not be defensive about using some admittedly harsh but non-lethal interrogation techniques."
"Would you agree with me that 99 percent of the American people would probably endorse such techniques if they would be shown to save thousands of American lives and were conducted only on terrorists?" Smith asked Mukasey.
"I can't sit here and say what I think 99 percent of people would do," Mukasey answered.
"You can't but I can," Smith said. "I understand that."
Hayden said the circumstances that led to the use of harsh interrogation techniques five years ago were "fairly unique" and "historic." He said they were spurred by a belief across the intelligence community that further catastrophic attacks were imminent and an admittedly weak understanding of the workings of Al Qaeda.
He said that situation has since changed. "We have far more knowledge of Al Qaeda," Hayden said. "And although the threat continues, the imminence of the attack is not apparent to us."