Global Policy Forum

By Scott Shane

In adamantly refusing to declare waterboarding illegal, Michael B. Mukasey, the nominee for attorney general, is steering clear of a potential legal quagmire for the Bush administration: criminal prosecution or lawsuits against Central Intelligence Agency officers who used the harsh interrogation practice and those who authorized it, legal experts said Wednesday.

On Wednesday, Senator Patrick J. Leahy, Democrat of Vermont, the chairman of the Senate Judiciary Committee, scheduled a confirmation vote for Tuesday amid deep uncertainty about the outcome at the committee level. If Mr. Mukasey's nomination reaches the Senate floor, moderate Democrats appear likely to join Republicans to produce a majority for confirmation. But a party-line vote in the Judiciary Committee, which seemed a possibility, could block the nomination from reaching the floor.

The biggest problem for Mr. Mukasey remains his refusal to take a clear legal position on the interrogation technique. Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey's calculations as he parried questions from the committee this week. Some legal experts suggested that liability could go all the way to President Bush if he explicitly authorized waterboarding.

Waterboarding is a centuries-old interrogation method in which a prisoner's face is covered with cloth and then doused with water to create a feeling of suffocation. It was used in 2002 and 2003 by C.I.A. officers questioning at least three high-level terrorism suspects, government officials say. Senator Arlen Specter of Pennsylvania, the committee's top Republican, said at a hearing Wednesday that any statement by Mr. Mukasey that waterboarding is torture could fuel criminal charges or lawsuits against those responsible for waterboarding. "The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened," Mr. Specter said.

Mr. Specter, who said he was briefed on the interrogation issue this week by the C.I.A. director, Gen. Michael V. Hayden, noted that human rights groups had filed a criminal complaint on torture against Donald H. Rumsfeld, the former defense secretary, while he was visiting France this month. Such cases, based on the legal concept of "universal jurisdiction" for torture and certain other crimes, have proliferated in recent years, though they have often posed more of an aggravation than a serious threat. Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004, wrote in his recent memoir, "The Terror Presidency," that the possibility of future prosecution for aggressive actions against terrorism was a constant worry inside the Bush administration.

"I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators, acting with the benefit of hindsight in a different political environment, would impose criminal penalties on heat-of-battle judgment calls," Mr. Goldsmith wrote. Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture "would open up Pandora's box," even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

"You would ask not just who carried it out, but who specifically approved it," said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. "Theoretically, it could go all the way up to the president of the United States; that's why he'll never say it's torture," Mr. Silliman said of Mr. Mukasey. Robert M. Chesney, of Wake Forest University School of Law, said Mr. Mukasey's statements could influence the climate in which prosecution decisions are made. "There is a culture of concern about where Monday-morning quarterbacking could lead to," Mr. Chesney said. If Mr. Mukasey declared waterboarding illegal, "it would make it politically more possible to go after interrogators in the future," he said. "Whether it would change the legal equities is far less clear."

Mr. Chesney and other specialists emphasized that prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization. Justice Department legal opinions are believed to have approved waterboarding, among other harsh methods. Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said Mr. Mukasey "is hedging in the interest of protecting current and former administration officials from possible prosecution," either in other countries or by a future American administration. "What he should be doing is providing a straightforward interpretation of the law," she said.

Mr. Mukasey, 66, a retired federal judge from New York, referred to the criminal liability issue several times in nearly 180 pages of written answers delivered to the Senate on Tuesday. He said that while he personally found waterboarding and similar interrogation methods "repugnant," he could not call them illegal. One reason, he said, was to avoid any implication that intelligence officers and their bosses had broken the law. "I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct," Mr. Mukasey wrote, "with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy."

If the judiciary committee were to split along party lines, the deciding vote could go to Senator Charles E. Schumer, Democrat of New York, who first suggested Mr. Mukasey to succeed Alberto R. Gonzales. That would leave Mr. Schumer, ordinarily an enthusiastic partisan combatant, with a difficult decision: whether to break with his fellow Democrats and save Mr. Mukasey's nomination or to vote to kill the nomination of a man he has highly praised. On Wednesday, Mr. Schumer was uncharacteristically reluctant to discuss his views. He avoided television crews waiting outside an unrelated press conference and refused to answer questions about the judge's letter on waterboarding. "I'm not going to comment on Judge Mukasey here," he said. "I'm reading the letter, I'm going over it."

Dana M. Perino, the White House press secretary, said Democrats were "playing politics" with the waterboarding issue, noting that Mr. Mukasey had not been briefed on classified interrogation methods. "I can't imagine the Democrats would want to hold back his nomination just because he is a thoughtful, careful thinker who looks at all the facts before he makes a judgment," Ms. Perino said. Senator Orrin G. Hatch, Republican of Utah, offered a fierce defense of Mr. Mukasey, who he said had spent "40 days in the partisan wilderness," on the Senate floor. "What kind of crazy, topsy-turvy confirmation process is this?" Mr. Hatch asked. But Senator Sheldon Whitehouse, Democrat of Rhode Island, declared on the floor that he would vote against confirming Mr. Mukasey, whom he called a good man and a brilliant lawyer, because of the torture question. "I don't think anyone intended this nomination to turn on this issue," Mr. Whitehouse said.

Three Republicans who have denounced waterboarding wrote to Mr. Mukasey on Wednesday, suggesting that they would support him but urging him to declare waterboarding illegal after he is confirmed. The senators, John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina, said anyone who engaged in waterboarding "puts himself at risk of prosecution, including under the War Crimes Act, and opens himself to civil liability as well."

Carl Hulse and Steven Lee Myers contributed reporting.