JIM LEHRER: Now, the waterboarding issue, it has become a big area of controversy, as you know. You've been right in the middle of it. But let's go through this so we can make sure that I understand and everybody understands what this is all about.

The director of the CIA said last week, Michael Hayden, said that -- well, I'll read you what he said. "It's not a technique that I've asked for. It is not included in the current program. And, in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute."

Is that your position, as well, Mr. Attorney General?

MICHAEL MUKASEY: My position is that I haven't been asked to make any ruling on the legality or illegality of waterboarding.

What I indicated to Congress in my hearing was that, because waterboarding is out of the CIA program now, in order for it to be re-introduced, that would have to be done at the request of the director of the CIA who, together with the director of national intelligence, would have to come to me with a program, a description of the circumstances, of the limits, of the safeguards.

And that would have to be evaluated not only against the laws that obtained back at the time that it was done, but against all the new statutes that have been passed. And there have been new statutes passed by Congress since the last time this was done, which, according to the director of the CIA, was 2003.

We've since had the Military Commissions Act, the Detainee Treatment Act, and an executive order that was authorized by Congress that set out what would be violations of what's called Common Article 3. All of those are overlaid over the prior law.

And if the technique were to be re-introduced, the circumstances of it being re-introduced, as well as its legality under all of those statutes, would have to be re-evaluated from the ground up.

JIM LEHRER: But as we sit here now, you agree with Director Hayden that it is not -- right now, it is not legal under current statute?

MICHAEL MUKASEY: Right now, it's not legal, simply because it's not part of the program. And in order for it to become part of the program, its legality would have to be passed on.

JIM LEHRER: And would you be the person who would pass on it?

MICHAEL MUKASEY: I would eventually be the person to pass on it, along with all the people who work with me at the Justice Department, if it comes up during my tenure.

JIM LEHRER: But in order for anybody to be waterboarded now, there would have to be a specific request that would go to the Justice Department for a legal ruling before it could be used, and then you all would examine it, you would hear people out who wanted to -- who proposed it, and then you would decide, "You can do it because it's legal," "You can't do it because it's illegal"?

MICHAEL MUKASEY: Pretty much correct. We would have to look at the facts and circumstances that they set out, including limits and safeguards, and then we would pass our conclusion to the president.

JIM LEHRER: But would that be your decision alone or would it eventually be the decision of the president?

MICHAEL MUKASEY: As to the legality, it would be my decision alone.

JIM LEHRER: So if the president or one of his agents or an official of the government -- like, say, the director of the CIA -- came to you and said, "We want to do some waterboarding," and the president has OK'd it, then it would go to you to decide whether or not it was legal before it could be done?

MICHAEL MUKASEY: My understanding is that's not the order in which it would happen. I think it would come to me before it came to the president, rather than after.

JIM LEHRER: Is this a -- this has gotten a lot of attention, Mr. Attorney General. Does it deserve it?

MICHAEL MUKASEY: That's really up to the American people, and it's not up to me. It's gotten attention because people have expressed concern. And I talked to the people who've expressed concern.

JIM LEHRER: Do you share the concern?

MICHAEL MUKASEY: I think that it is not surprising that people are concerned about any set of techniques that are beyond the norm that are coercive. It's normal for people to be concerned about what their government does.

I said during my oversight hearings that when you talk about a program like the one that the CIA administers, whether the current program or the past one, you're talking about a choice among unpleasant choices.

These are not pleasant choices; these are the choice among bad alternatives. And it's perfectly normal and proper for people to be concerned that their government is choosing among bad alternatives.

JIM LEHRER: The bad alternatives, the conventional wisdom, as we speak, in the political world is we have a potential Republican nominee, John McCain, and two Democratic potential nominees for the president, Barack Obama and Hillary Clinton, all three say they would more or less have said directly that there will never be any waterboarding technique while they are president. Is that something you would be comfortable with as a presidential edict?

MICHAEL MUKASEY: That is up to political people. I'm not a political person. That's their choice.

JIM LEHRER: But it is a political decision to make that kind of...

MICHAEL MUKASEY: Well, it's a political decision after the legality is passed on, yes.

JIM LEHRER: In other words, a president, no matter who it is, could decide that we're going to use waterboarding as a technique, because of -- you're saying no. You're shaking your head no.

MICHAEL MUKASEY: Right, because it would have to go through the steps that I outlined, including a determination as to whether it was lawful. If a determination were made that what was proposed was lawful, then as a policy matter the president, along with his intelligence people, would determine whether that technique was warranted in the gathering of intelligence.

			Michael Mukasey Attorney General [W]hat the government does in compliance with the law is important in all respects. It's not a question of doing something in the name of the American people, which suggests that somehow this is being done for vindictive reasons.

JIM LEHRER: Now, the use of this technique before, you were asked this week or last week that whether or not you were going to investigate the use of waterboarding and whether or not it was a criminal -- as a criminal investigation. You said no. Why? MICHAEL MUKASEY: Because the use before, to the extent it was part of the CIA program, was something that was authorized by an opinion of the Justice Department, and no one who acted in reliance on an opinion of the Justice Department should then be subjected to an investigation or a prosecution based on having so relied. If we do that, then what we're saying, essentially, is that nobody can rely on an opinion of the Justice Department for any longer than the tenure of the person who gives it, and maybe for not even that long, only until the political winds change. And that is something that I think is not appropriate, something I won't do. JIM LEHRER: So that ends it, right? I mean, you have the power to make that decision? There will be no criminal investigation and that's that? MICHAEL MUKASEY: Yes. JIM LEHRER: And you have the same kind of power that if, to move ahead where we were a moment ago, somebody comes up with a proposal to use it again, you have the power to say, "No, that's not legal," and it will not be done? MICHAEL MUKASEY: Yes, under the laws. This is not a question of my power or my whim. This is my investigation of what the law requires, with the assistance of a lot of very talented people at the Justice Department and very dedicated people at the Justice Department who work with me. And, again, it would be an assessment under current law, which has changed substantially since the prior law. JIM LEHRER: And as you say, this is important because what we do in the name of the American people is important, right? In other words, what the government does in the name of the American people in terms of interrogation techniques speaks for all of us? MICHAEL MUKASEY: What the government does is important in all respect. What the government does to gather intelligence is important in all respects. And what the government does in compliance with the law is important in all respects. It's not a question of doing something in the name of the American people, which suggests that somehow this is being done for vindictive reasons or anything of the sort. JIM LEHRER: Sure. MICHAEL MUKASEY: This was being done to gather intelligence, but that's my only caveat on what you just said. JIM LEHRER: Well, my terminology -- what I was suggesting was that, when an official of the United States government acts in any respect, they act in the name of the people, do they not? MICHAEL MUKASEY: Yes. JIM LEHRER: And so if it's an interrogation technique, they're doing it in our name. MICHAEL MUKASEY: They're doing it under the law in order to gather intelligence lawfully. JIM LEHRER: The facts in this case, in the case of the three uses of waterboarding involved right after 9/11, the attack on the Twin Towers and the Pentagon, and otherwise. Is it your understanding, is it your feeling that it would take a monumental event like that to ever be used -- for this technique to ever be used again? MICHAEL MUKASEY: I don't want to anticipate what it might take or what it might not take. The proposal to do it or not is going to come from or not come from the people who are gathering intelligence. And I don't know that it's a matter of a cataclysm. JIM LEHRER: But they may come up with a set of circumstances and you'll deal with that if and when that happens, right? MICHAEL MUKASEY: Correct.

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?