Holder Tells Senators Waterboarding Is Torture

WASHINGTON — Pledging to run an independent Justice Department free of political taint, Eric H. Holder Jr. said on Thursday that he believes unequivocally that “waterboarding” is torture, and that it must not be practiced by the United States regardless of the circumstances.

The question of waterboarding was the first issue to be raised at the Senate Judiciary Committee’s confirmation hearings of Mr. Holder for attorney general. As expected, he also came under close questioning over his role as deputy attorney general in the pardoning of Marc Rich, a billionaire who had fled the country rather than face federal tax evasion charges, at the end of President Bill Clinton’s second term.

Addressing the subject of torture at the military prison in Guantánamo Bay, Cuba, Mr. Holder told Senator Patrick J. Leahy of Vermont, the committee chairman, “Waterboarding is torture.” It was so defined under the Spanish Inquisition and when used by the Japanese in World War II, he said, and it remains so today.

President-elect Barack Obama has vowed to close the prison, a goal Mr. Holder said he shared. “There are possibly many other people who are not going to be able to be tried but who nevertheless are dangerous to this country,” he said. “We’re going to have to try to figure out what to do with them.”

Asked whether a president might have the power to immunize people against criminal charges if they employ waterboarding, which creates a drowning-like sensation, to obtain intelligence to use against terrorists, Mr. Holder answered unambiguously: “Mr. Chairman, no one is above the law.”

It was clear that the answer was just what Mr. Leahy wanted to hear. The senator has been a harsh critic of the Bush administration, which has defended such harsh interrogation techniques as sometimes essential, and he has expressed public annoyance over the seeming reluctance of Attorney General Michael Mukasey and his predecessor, Alberto R. Gonzales, to renounce waterboarding.

Mr. Holder conceded that President Bush and his top aides had to make difficult decisions. “It is an easy thing for somebody to look back in hindsight and be critical,” he said. “Having said that, the president-elect and I are both disturbed by what we have seen and what we have heard.”

Mr. Holder encountered a bumpy reception over his bungled role in the pardoning of Mr. Rich. He called the controversy “the most intense, most searing experience I’ve ever had as a lawyer,” but one that would make him a better attorney general.

“I made mistakes,” he told the committee, which will vote on his nomination. “I’ve accepted the responsibility for those mistakes.”

But Mr. Holder maintained that the entire episode, in which he said he was not the “careful, thoughtful lawyer” he typically is, will make him an even stronger Justice Department head “as perverse as this might sound.”

Mr. Holder promised to be an attorney general for all Americans if his nomination is confirmed by the full Senate. “The Department of Justice first and foremost represents the people of the United States — not any one president, not any one party,” he said.

“The Justice Department must also defend the civil rights of every American,” Mr. Holder said. “Improper political hiring has undermined this important mission. That must change.” Critics of the Bush Administration have often charged that the department became partisan and politicized under Mr. Gonzales.

Mr. Holder came under the sharpest questioning from the ranking Republican on the committee, Senator Arlen Specter of Pennsylvania, over his role in the case of Mr. Rich. “Given the background of this man,” Mr. Specter said, “it’s a little hard for me to see how you came to the conclusion you did.”

On the eve of the pardon, Mr. Holder told the White House he was “neutral, leaning toward” favorable on the matter, a conclusion that helped ensure that Mr. Clinton signed the pardon despite objections.

Senator Specter called Mr. Rich a man with “a reprehensible record,” an apparent allusion to reports from American intelligence officials that Mr. Rich’s oil-and-commodities company had done business with Iran, Iraq and other troublesome states.

Although President Clinton’s constitutional power to grant Mr. Rich a pardon was unquestioned, it seemed clear after the fact that Mr. Holder, who was then deputy attorney general, involved himself in Justice Department discussions beforehand without a full briefing from his own prosecutors about the facts of the case. The Rich pardon affair was investigated in 2001 by Congress and a grand jury amid a public clamor because Mr. Rich’s former wife had donated generously to Mr. Clinton’s presidential library and to Democratic causes.

“Given your experience and background,” Mr. Specter pressed Mr. Holder, how could he possibly have recommended a pardon for Mr. Rich?

“I don’t mean to minimize what I did,” replied Mr. Holder, who is about to turn 58 and has years of experience as a prosecutor and a federal judge.

Despite the questions concerning the Rich pardon, no one has suggested that Mr. Holder is in danger of being rejected by the Senate. He was introduced by retired Senator John Warner of Virginia, a Republican who said Mr. Holder had a sterling reputation, both professionally and personally, among people of various political persuasions.

If confirmed, Mr. Holder would be the first black attorney general. Noting that Thursday is the 80th anniversary of the birth of the Rev. Dr. Martin Luther King Jr., Mr. Holder said, “I feel privileged just to stand in his shadow.”