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Is waterboarding torture? Key question in furor over CIA tapes

Probes by Attorney General Mukasey and others could help determine how far the controversy reaches.

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In the Watergate scandal of the 1970s and the Iran-contra scandal of the 1980s, government watchdogs used a conventional set of questions designed to expose attempts to cover up wrongdoing.

In this year's emerging Al Qaeda tapes controversy, lawmakers are asking a more fundamental question: Is waterboarding torture?

It is a question that has followed Attorney General Michael Mukasey from his Senate confirmation hearings in October. And it is a question that continues to dog some Central Intelligence Agency officers who were authorized in 2002 to use harsh interrogation techniques to break Al Qaeda suspects.

On Tuesday, in his first press conference, Mr. Mukasey said he is examining the series of legal memos written by Justice Department lawyers condoning coercive tactics.

He says he intends to assess the legality of the memos. Then he will try to determine whether the methods actually used by the CIA conformed with legal requirements established in the opinions.

Mukasey's findings could play an important role in determining whether the controversy over the destroyed Al Qaeda interrogation tapes explodes into an administration-wide scandal or is ultimately viewed as an intra-agency mistake.

Trying to explain tapes' destruction

There are several investigations now under way in Washington related to the destruction of the interrogation tapes. Most involve preliminary attempts to answer why the tapes were destroyed by CIA officials in November 2005 despite judicial and other orders that they be produced or preserved.

Some analysts suggest the agency was attempting to head off a CIA version of the Army's Abu Ghraib scandal. The goal: eliminate the pictures – the indelible images – before they leak to the press and public.

"It really shows a mind-set and pattern of lawlessness, not only to engage in illegal behavior like torture, but to then destroy the evidence and attempt to cover it up," says Jonathan Hafetz, a lawyer at the Brennan Center for Justice at NYU Law School, who represents several detained Al Qaeda suspects.

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