justice shrugged

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WASHINGTON -- Attorney General Michael Mukasey raised concerns that government agents and national security lawyers may be at risk for criminal prosecution after his likely successor, Eric Holder, declared that waterboarding of terror detainees is torture.

The 67-year-old former federal judge in New York, who took office 14 months ago, said in an interview that the incoming administration of President-elect Barack Obama faces a "conundrum" as it tries to shut down the prison at Guantanamo Bay, Cuba.

[Michael Mukasey]Getty Images

Attorney General Michael Mukasey

Word that Mr. Obama plans to issue an executive order to close the prison has caused worry among Justice Department lawyers who fear evidence backing the cases against many of the approximately 250 detainees wouldn't hold up in a conventional court proceeding.

Mr. Holder made the torture comment at his confirmation hearing Thursday when asked about the technique, which induces the sensation of drowning and was used by Central Intelligence Agency interrogators on at least three detainees.

The Holder response was in contrast to that of Mr. Mukasey, who declined when asked the same question at his confirmation hearing in 2007. The Justice Department's office of legal counsel issued legal opinions, later rescinded, that backed the legality of harsh interrogation techniques such as waterboarding. The CIA has said the method hasn't been used since 2003, but President George W. Bush has opposed congressional efforts to explicitly ban the CIA from ever using it again.

"Torture is a crime," Mr. Mukasey said in an interview Friday, adding that he worried "about the effect on...the work of fine intelligence lawyers who are called on to make judgments on questions like that, often under tremendous time pressure -- not to mention the pressure of an attack that killed 3000 people [and caused worry that] maybe there was going to be another one."

President-elect Barack Obama and his attorney general nominee, Mr. Holder, have said that once in office they will review actions taken by the Bush administration, but have declined to endorse the idea of conducting criminal probes of those involved in interrogations.

Mr. Mukasey said the legal opinions were rescinded because they were wrong. But he said the chance of prosecution could cause lawyers and intelligence agents to doubt legal advice from the Justice Department. Mr. Mukasey is preparing to leave office to make way for Mr. Holder, whose nomination is scheduled for a vote in the Senate Judiciary Committee on Wednesday.

Mr. Mukasey acknowledged that one reason he didn't answer the question as Mr. Holder did was because of the peril it would pose to agents and lawyers who he believes did their best under trying circumstances following the Sept. 11, 2001 terror attacks.

"It's one thing to write opinion on matter of abstruse law. It's quite something else to write [opinions] on whether something is or isn't a crime," he said. He added that in the future, government lawyers and agents "have to be concerned that you may someday -- having given your best, most honest, most impartial advice -- have it be said of you that you sanctioned a crime."

The closure of Guantanamo puts pressure on the new administration to find a way to deal with "enormously dangerous" prisoners who cannot be released, Mr. Mukasey said. "The people at Guantanamo both in the nature of what it is they have done and want to do, and in the way the cases were prepared, are something that is totally different" from conventional criminal trials, he said.

The Bush administration is using Military Commissions to try the cases, in part because its rules permit the use of evidence that wouldn't be allowed in civilian courts. Some detainees were handed over to the U.S. after being in custody of foreign governments that are reputed to use torture. Some were interrogated by the U.S. agents using methods that are no longer allowed. The system has come under criticism from human rights groups.

Any attempt to try detainees in U.S. courts, as Mr. Holder said was possible, could be complicated because many of the cases rely on evidence that was collected in a war zone, without detainees being advised of their rights, and using classified intelligence methods, Mr. Mukasey said.

"The protection of our own classified info, our means and methods for gathering it, would be put at risk," he said.

Mr. Mukasey defended the Justice Department's handling of cases involving mortgage and financial fraud, which may be partly to blame for the global financial crisis. He said the Justice Department and the Federal Bureau of Investigation aren't regulators and only act after alleged crimes occur. He noted that the department has shifted resources to increase the number of cases it is bringing.

Mr. Mukasey's term at the Justice Department solidified his reputation, earned over 18 years as a judge, as a tough law-and-order man. He was chief judge in the U.S. District Court for New York's southern district when the Sept. 11 attacks occurred. He oversaw several prominent terrorism trials, including part of the case against Jose Padilla, who was later convicted of aiding terrorists.

He retired to go into private practice at Patterson Belknap Webb &Tyler LLP before the White House called on him to serve in Washington. He said he hasn't decided what he will do after leaving office.

Write to Evan Perez at evan.perez@wsj.com

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This page contains a single entry published on January 17, 2009 8:37 PM.

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