By James Vicini and Randall Mikkelsen
WASHINGTON, Feb 7 (Reuters) - U.S. Attorney General Michael Mukasey on Thursday rejected calls by Democratic lawmakers to open a criminal investigation into the CIA’s confirmed use of a widely condemned interrogation technique known as waterboarding.
"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 ... and was found to be permissible under the law as it existed then," Mukasey told the House of Representatives Judiciary Committee.
He said that since the CIA agents had relied on a Justice Department opinion that the technique was legal, he did not believe they should be subjected to an investigation.
"That’s not something that I think would be appropriate, and it’s not something I would do," he said.
Mukasey was asked about CIA Director Michael Hayden’s disclosure on Tuesday publicly confirming that government interrogators had used waterboarding, often described as simulated drowning, on three suspects captured after the Sept. 11 attacks.
Those subjected to waterboarding were suspected Sept. 11 mastermind Khalid Sheikh Mohammed and senior al Qaeda leaders Abu Zubaydah and Abd al-Rahim al-Nashiri, Hayden said.
Hayden told Congress on Thursday that waterboarding may no longer be legal for use in the CIA’s terrorism interrogation program.
"My own view, the view of my lawyers and the Department of Justice is, it is not certain that that technique would be lawful under the current statute," Hayden told the House Intelligence Committee.
Hayden said new laws, court decisions and presidential orders since the CIA last used the technique five years ago put the legality in doubt. He said he had not sought authority to use the technique.
Hayden said he went public with the acknowledgment because of the political debate over waterboarding, which critics say is a form of illegal torture.
U.S. PUBLIC DISCOURSE
"The question of waterboarding had become so much of the public discourse about the activities of the American intelligence community," Hayden said.
"At the end of that political discussion, whatever guidance we get from the American political process, in law or by other means, guides the performance of this community, guides the performance of the CIA," he added.
Rep. John Conyers, a Democrat from Michigan and the Judiciary Committee chairman, asked Mukasey whether he was ready to start a criminal investigation into whether the confirmed use of waterboarding by U.S. agents was illegal.
"Just this week, we learned that CIA agents have engaged in waterboarding and that federal prosecutors appear to have known about the destruction of CIA interrogation tapes for more than a year before taking any action," Conyers said.
Mukasey explained why he rejected any investigation.
"Waterboarding, because it was authorized to be part of the program ... cannot possibly be the subject of a criminal -- a Justice Department -- investigation, because that would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," Mukasey said.
The CIA said in December that it had destroyed videotapes depicting the interrogations of Zubaydah and Nashiri, prompting a Justice Department investigation.
Mukasey has said the investigation was focused on the tapes’ destruction rather than on the interrogation they depict. (Editing by David Alexander, and Philip Barbara)