Published January 13, 2015
Attorney General Michael Mukasey said Friday he doesn't plan for a special prosecutor to investigate whether the CIA broke the law when it destroyed videotapes of terror interrogations, defying some in Congress who want an independent look at the politically charged case.
Mukasey, in a 41-minute briefing with reporters, also ducked repeated questions about whether he considers waterboarding an illegal form of torture — an issue expected to be at the top of the agenda when he appears next week before the Senate Judiciary Committee.
Speaking tersely and in an even, low tone, Mukasey would not discuss whether he has seen any evidence that destroying the interrogation tapes violated court orders or otherwise interfered with any case. He said the ongoing criminal investigation, headed by career federal prosecutor John Durham of Connecticut, was opened on grounds of "some indication — which is a lot less than probable cause — some indication that there was any violation of any federal statute."
"And that's the only basis on which we proceeded," Mukasey said.
Asked if he has reconsidered his decision not to put a special prosecutor in charge of the investigation, Mukasey said, simply, "No."
Mukasey was even more reluctant to discuss the act of waterboarding itself — the interrogation tactic that is believed to have been shown on the destroyed tapes. The issue briefly stalled Mukasey's nomination as attorney general last October, when he said he did not know enough about it to say then that it should be outlawed by the United States.
"I understand there's interest in that," Mukasey said Friday, noting that he promised senators last fall that he would review the practice of waterboarding and "offer the view of whether the current program is lawful or not."
"That's what I said I would do," he added. "And I can't say any more, and I won't say any more."
He also refused to say whether he has completed his review, or if he would ever publicly announce his opinion of whether waterboarding is legal. Used during the Spanish Inquisition, waterboarding involves pouring water over a person's cloth-covered face to create the sensation of drowning. It was banned by the CIA and the Pentagon in 2006.
In his first congressional hearing since being sworn in, Mukasey is scheduled to testify Wednesday in front of the Senate Judiciary panel that threatened his nomination. Ten senators, led by Democrat Edward M. Kennedy of Massachusetts, demanded this week that Mukasey immediately clarify his stand on waterboarding, saying he has had "ample time ... to study this issue and reach a conclusion."
Mukasey also touched Friday on the administration's push for Congress to permanently allow U.S. intelligence officials to eavesdrop on overseas terror suspects without first seeking court approval. Such changes to the Foreign Intelligence Surveillance Act are under fierce debate in Congress, and without them, Mukasey said, "it certainly doesn't help" investigations.
Meanwhile, Durham recently added two veteran organized crime prosecutors from Boston to his team investigating the destroyed CIA tapes. James Farmer is the head of the criminal division and supervises the national security section for the U.S. attorney's office. James Herbert is the head of the state's Organized Crime Strike Force.
Durham and Herbert were part of a Justice Department squad that won national accolades for unraveling a decades-long corrupt relationship between the Boston FBI and the area's most ruthless gangsters. Farmer successfully prosecuted members of the Boston Police Department for extorting bribes from business owners in the neighborhoods they patrolled in the late 1980s.
Massachusetts U.S. Attorney Michael Sullivan described Farmer and Herbert as "consummate professionals" who are not swayed by political forces.
"I have absolute confidence in their ability to exercise independent judgment," Sullivan said.