[Senate Hearing 110-897]
[From the U.S. Government Publishing Office]
S. Hrg. 110-897
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JANUARY 30, 2008
__________
Serial No. J-110-70
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
52-691 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., A U.S. Senator from the State of Iowa,
prepared statement............................................. 279
Letter to Larry Thompson, Deputy Attorney General, Department
of Justice................................................. 281
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement and closing statement..................... 312
letter, December 19, 2007.................................... 315
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Mukasey, Michael B., Attorney General, Department of Justice,
Washington, D.C................................................ 6
QUESTIONS AND ANSWERS
Responses of Michael B. Mukasey to questions submitted by
Senators Leahy, Specter, Kennedy, Biden, Kohl, Feingold,
Schumer, Durbin, Grassley, Brownback and Coburn
June 27, 2008................................................ 73
July 2, 2008................................................. 164
July 3, 2008................................................. 229
SUBMISSIONS FOR THE RECORD
Fugh, John L., (Ret.) Major General, Guter, Don, (Ret.) Rear
Admiral, Hutson, John D., (Ret.) Rear Admiral, and Brahms,
David M., (Ret.) Brigadier General, USMC, letter............... 277
Kohn, Kohn & Colapinto, LLP, Washington, D.C., letter............ 298
Mukasey, Michael B., Attorney General, Department of Justice,
Washington, D.C., statement.................................... 317
National Religious Campaign Against Torture, Linda Gustitus,
President, and Rev. Richard Killmer, Executive Director,
Washington, D.C., letter....................................... 342
U.S. Senate, Committe on Armed Services, Senator John McCain,
Senator Lindsey Graham, and Senator John Warner, Washington,
D.C., letter................................................... 343
Washington Post:
November 4, 2007, article.................................... 345
White House, Mike McConnell, Director of National Intelligence,
Washington, D.C., letter....................................... 348
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
----------
WEDNESDAY, JANUARY 30, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10:01 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch,
Grassley, Kyl, Sessions, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Before we even start, and before we start
the clock on me, I would note again everybody is welcome to
these hearings. We will not have any demonstrations either for
or against any position I might take, any position the Attorney
General might take, or any position that any member of this
Committee might take.
Also, I want everybody to be able to see and hear, and we
will not expect anybody to be standing and blocking the view of
anyone who is here. I just wanted to make that very clear
because if there are such demonstrations, I will ask the police
to remove anybody who is making a noisy demonstration.
Good morning, Attorney General.
Attorney General Mukasey. Good morning, Mr. Chairman.
Chairman Leahy. We welcome Michael Mukasey back before us
for our first oversight hearing with the new Attorney General.
We will continue our work to restore the Department of Justice
to its vital role of ensuring the fair and impartial
administration of justice.
I first came to the Senate 33 years ago, when the Nation
and the Department of Justice were reeling from Watergate and
the trust of the American people in their government had been
shaken. The damage done over the last 7 years to our
constitutional democracy and our civil liberties rivals the
worst of those dark days. This President's administration has
repeatedly ignored the checks and balances that had been wisely
placed on executive power by the Founders. They were concerned
that they not replace the tyranny of George III with an
American king.
Among the most disturbing aspects of these years has been
the complicity of the Justice Department, which has provided
cover for the worst of these practices during those 7 years.
Its secret legal memoranda have sought to define torture down
to meaninglessness. They have sought to excuse warrantless
spying on Americans contrary to our laws.
They have made what Jack Goldsmith, a conservative former
head of the Office of Legal Counsel, has rightly called a
``legal mess'' of it all. This President and this
administration have, through signing statements and self-
centeredness, decided that they are above the law, that they
can unilaterally decide what parts of what laws they are going
to follow. And the costs have been enormous, to our core
American ideals, to the rule of law, and to the principle that
in America, no one--not even a President--is above the law.
A little more than a year ago, Attorney General Gonzales
sat in the chair now occupied by Attorney General Mukasey as we
began our oversight efforts for the 110th Congress. And over
the next 9 months, our efforts revealed a Department of Justice
gone awry. The leadership crisis came more and more into view
as Senator Specter and I led a bipartisan group of concerned
Senators to consider the United States Attorney firing scandal,
a confrontation over the legality of the administration's
warrantless wiretapping program, the untoward political
influence of the White House at the Department of Justice, and
the secret legal memos excusing all manners of excess.
This crisis of leadership has taken a heavy toll on the
tradition of independence that has long guided the Justice
Department and provided it with safe harbor from political
interference. It shook the confidence of the American people.
But through bipartisan efforts among those, both Republicans
and Democrats, who care about Federal law enforcement and the
Department of Justice, we joined together to press for
accountability, and that resulted in a change in leadership at
the Department.
So today we continue the restoration of the Department
through our oversight. And I would hope that the Attorney
General will answer our questions and speak not as merely the
legal representative of the President, but as the Attorney
General for all Americans. I hope that he avoids the practice
all too common in this administration and the old leadership at
the Department of cloaking misguided policies under a veil of
secrecy, leaving Congress, the courts, but especially the
American people in the dark.
As we begin the final year of the Bush-Cheney
administration, we continue to face more questions and shifting
answers on issues ranging from the destruction of White House
e-mails required by law to be preserved--the law required them
to be preserved, and yet they were destroyed--to questions
about the CIA's destruction of videotapes of detainee
interrogations, and then they did not tell the 9/11 Commission
or Congress or the courts, or anybody else; and more demands
for immunity and unaccountability among those in the
administration. The White House continues to stonewall the
legitimate needs for information by this Committee and others
in the Congress. They even contemptuously refuse to appear when
summoned by subpoena.
The Bush-Cheney administration also created the unnecessary
impasse we face today over the Foreign Intelligence
Surveillance Act by breaking agreements--agreements that the
administration itself made last summer with the congressional
leaders. Instead of following through on its commitments and
passing a bill that leaders in Congress and the administration
agreed would protect both America's interests and the civil
rights and liberties of individual Americans, they tried to ram
through a bill without any checks and balances.
Today we are going to get some indication whether the new
Attorney General will help us restore checks and balances to
our Government and recapture American ideals. Attorney General
Mukasey, I certainly hope you will. We will learn whether we
have begun a new chapter at the Department or whether we are
just finishing the last one.
And it is not enough to say that waterboarding is not
currently authorized. Torture and illegality have no place in
America, and we should not delay beginning the process of
restoring America's role in the struggle for liberty and human
dignity around the world. Tragically, this administration has
so twisted America's role, law, and values that our own State
Department, our military officers, and, apparently, even our
top law enforcement officer, are now instructed by the White
House not to say that waterboarding is torture and illegal.
Never mind that waterboarding has been recognized as torture
for the last 500 years. Never mind that President Teddy
Roosevelt properly prosecuted American soldiers for this more
than 100 years ago. Never mind that we prosecuted Japanese
soldiers for waterboarding Americans during World War II. Never
mind that this is the practice of repressive regimes around the
world. That is not America.
This session I have joined with Senators Kennedy and
Specter to cosponsor legislation to rein in this
administration's abuse of the ``state secrets'' defense, and I
expect that will likewise be raised at this hearing along with
torture, rendition, executive privilege, and other key matters.
This Committee has a special stewardship role to protect
our most cherished rights and liberties as Americans and to
make sure that our fundamental freedoms are preserved for
future generations. No one is more eager than I to see our new
Attorney General succeed in restoring strong leadership and
independence to the Department of Justice. So I hope we will
take a step forward to work together to repair the damage
inflicted on our Constitution and civil liberties during the
time preceding his time as Attorney General.
Senator Specter.
STATEMENT OF SENATOR SPECTER, U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
We welcome you here today, Attorney General Mukasey, for
the first oversight hearing. I note at the outset that you have
brought a new tone to the Department of Justice, a very welcome
new tone with good appointments such as a Deputy Attorney
General and other key spots. We look forward to your
administration of this very important Department to take it
from the many problems it has had in the immediate past.
Senator Leahy talks about the expansion of executive power,
and I think that definitely has been the case. No one is above
the law, but when the President institutes the Terrorist
Surveillance Program, the question arises as to whether it is
lawful or not. It clearly violates the Foreign Intelligence
Surveillance Act, but the President has asserted broader
constitutional authority under Article II. And no statute can
change the constitutional authority of the President.
Regrettably, the courts have not yet ruled on that important
subject.
And when we take up the issue of waterboarding--which by
all initial indications will be a major subject here today--
your views are important, but there are many ramifications
beyond your opinion as to whether it is legal or may be
constitutionally imposed.
The Senate considered this issue back on September 26th of
2006, and the Senate, on an amendment to ban waterboarding,
voted 53-46 not to ban waterboarding. I was among the
dissenters. I think that waterboarding ought to be banned as a
generalization, and I think that waterboarding is torture. But
that is not the end of the discussion.
There has been considerable public discourse on whether
torture may be justified under some exigent, extraordinary
circumstances. Former President Clinton was asked on an NPR
interview in September of 2006 whether the President needed the
option to authorize torture. And he said, ``Speaking as someone
who has been there"--the former President described a
hypothetical, the extreme case of a top aide of al Qaeda who
was planning an attack in 3 days, and said, ``You do not need a
blanket advance approval for torture. We could draw a statute
much more narrowly which would permit the President to make a
finding in a case like I just outlined.''
The issue was taken up in a learned opinion by the Israeli
Supreme Court, and the court said that in exigent circumstances
there would be a defense for the use of torture. And it was
amplified in a concurring opinion to this effect: ``The state
should not be helpless from a legal perspective in those
emergencies that merit being defined as a `ticking bomb,' and
the state would be authorized to order the use of exceptional
interrogation methods in those circumstances. Such an authority
exists deriving from the basic obligation of a state to defend
and protect and safeguard its citizens.''
The same view was expressed by Senator Schumer on June 4th
of 2004. Similar views have been expressed by the academics, by
former Deputy Attorney General Phil Heymann, who is now a
Harvard professor, and by Harvard Professor Dershowitz.
So that it is my view that beyond what you may say, Mr.
Attorney General, the Congress ought to take up this subject.
And I have discussed, preliminarily, with Senator Leahy, the
possibility that we hold hearings on the subject. If Congress
is going to pass on the question as to whether the CIA ought to
be limited to the Army Field Manual, then we ought to draw the
parameters on whether torture may be constitutionally used. It
is a violation of international law, but this may well be
another area where the President will seek to exercise Article
II powers, saying that the statutes which prohibit torture do
not apply in exigent circumstances.
And we know that constitutional law is a balancing test.
Freedom of speech, our most prized possession, is limited if
there is a clear and present danger. Fourth Amendment search
and seizure yields to exigent circumstances. So as Justice
Jackson outlined in a famous opinion, Congress is well advised
to draw the parameters to influence what the President may do
under Article II powers. And it is a complex subject which I
think requires elaborate consideration by this Committee in
advance of Senate action.
There are many other important subjects to take up, Mr.
Attorney General: the reporter's privilege, attorney-client
privilege, the question on the contempt citations outstanding
as to certain executive officials. And just a word or two about
the Foreign Intelligence Surveillance Act, a critical issue
which is now pending on the administration's effort to give the
telephone companies retroactive immunity.
From all indications, the telephone companies have been
good citizens, but I oppose retroactive immunity because it is
possible to substitute the Government for the telephone
companies and still not close down the courts. And that is by
passing an amendment which Senator Whitehouse and I have
offered, which would substitute the Government as a party
defendant. The Government would not have the defense of
governmental immunity, as the telephone companies do not, but
would have the state secrets defense.
Regrettably, congressional oversight has been ineffective
on the expansion of executive power. When a request is made on
the CIA tapes, we get resistance from the administration, and
the response is, well, it is political what Congress is doing.
But last week, when a Federal court made an order to produce
the tapes, it will be complied with. Nobody can say the court
is political.
And just two more sentences, Mr. Chairman. The separation
of power is fundamental to our Constitution, and I think it is
a very bad precedent to close off the courts. I doubt there
will be any verdicts in those telephone company cases, but the
separation of powers will be badly undercut if Congress gives
retroactive immunity to the telephone companies, especially as
opposed to keeping the courts open and attaining more
information.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Well, you get some indication, Mr. Attorney General, that
there will probably be a few questions here today. Would you
please stand and raise your right hand? Do you solemnly swear
that the testimony you will give in this matter will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Attorney General Mukasey. I do.
Chairman Leahy. Thank you. I believe, Mr. Attorney General,
when we talked yesterday and again this morning, I mentioned
that we would have some limitation on time in your opening
statement. Of course, the whole statement will be part of the
record, but I would ask you certainly to proceed as you wish
and cover the issues you want. But note that the whole
statement will be in the record.
Attorney General Mukasey. I will try to get through it as
quickly as I can.
Chairman Leahy. Thank you.
STATEMENT OF HON. MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE
UNITED STATES, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Mukasey. Good morning, Chairman Leahy,
Senator Specter, and members of the Committee. I thank you for
the opportunity to testify today.
My tenure at the Department of Justice began less than 3
months ago, and even in that short time, I have confirmed what
I had hoped and expected to find, which was men and women who
are talented, committed, and dedicated to fulfilling the
Department's mission.
As you know, Mr. Chairman, I am new to Washington, and my
education in the ways of this city continues. I have tried to
live up to the commitments that I have made to work with
Congress and to keep Congress informed about the Department's
activities and its policy positions where possible.
There will be moments of disagreement, as there have been.
There are policy initiatives that the Department supports that
some members of this Committee vigorously oppose and some
policy initiatives that members of this Committee support that
the Department opposes. There also are situations where the
interests of the executive branch and the legislature are in
tension. That is not, as some people have argued, evidence of a
broken or a flawed political system; it is part of the genius
of the design our Constitution, which embodies a robust
separation of powers. Although these tensions will never
disappear, there are many areas of agreement where we can work
together on behalf of our common clients, the American people.
There is one area where I particularly need your help. As
you know, many key positions in the Justice Department,
including those of Deputy and Associate Attorney General--the
No. 2 and three positions, respectively--are vacant. These
positions, and others, are being filled by people of great
talent and dedication serving in acting capacities. But the
continued wait for Senate-confirmed officials creates a
tentative atmosphere that is not in the interest of the
Department or of the country.
Mr. Chairman, I appreciate the steps that the Committee has
taken to hold hearings for these nominees. I hope you will work
to ensure that they and others are confirmed quickly so that
the permanent leadership team is in place at the Justice
Department.
As this Committee is well aware, the clock is ticking on
critical national security authorities. The PATRIOT Act,
which--I am sorry, the Protect America Act, which gave the
Government new authorities to conduct surveillance of
intelligence targets overseas, will soon sunset. I urge you to
pass legislation ensuring that our intelligence community
retains the tools that it needs to protect the country. It must
be legislation that enables our intelligence professionals to
surveil targets overseas without individual court orders, and
it must provide retroactive liability for companies--
retroactive liability protection for companies, I am sorry, who
are believed to have helped our country in the wake of the
September 11, 2001, terrorist attacks.
The Senate Intelligence Committee's bipartisan bill is not
perfect, but it is a fundamentally sound proposal that would
put critical surveillance authorities on a long-term
institutional footing and would help ensure that we continue to
obtain assistance from third parties that is vital to our
national security efforts. I hope Congress will act quickly to
pass the legislation that our Nation needs to modernize our
national security surveillance laws.
I am reminded each day in my morning briefings that the
protection of the American people from the threat of
international terrorism is and must remain the Justice
Department's top priority. The Department continues to make
progress in other key areas as well, from protecting the civil
rights of all people to preventing violent crime and public
corruption, to stemming illegal immigration, and I would be
happy to discuss each of these subjects in detail with you
today.
Let me turn to an issue that I know is of great importance
to several members of this Committee in which interest has
already been expressed.
Mr. Chairman, as you noted in a letter that you sent to me
late last week, I committed at my confirmation hearing to
review the current program used by the CIA to interrogate high-
value al Qaeda terrorists and a legal analysis concerning that
program. I have kept my commitment to the Committee. I have
carefully reviewed the limited set of methods that are
currently authorized for use in the CIA program, and I have
concluded that they are lawful.
I am aware that you and other members of the Committee have
asked specifically that I address the legality of
waterboarding. I sought and I received authorization to
disclose publicly, however, that waterboarding is not among the
techniques currently authorized for use in the CIA program. In
that respect, passing on its legality is beyond the scope of
the commitment that I made to this Committee. Waterboarding is
not and may not be currently used. Whether or not waterboarding
is something that will be authorized in the future is not for
me to decide, certainly not for me alone. But I can tell you
what it would take for waterboarding to be added to the CIA
program:
First, the CIA Director would have to request its
authorization. Second, he would have to ask me or any successor
of mine if its use would be lawful, taking into account the
particular facts and circumstances at issue, including how and
why it is to be used, the limits of its use, and the safeguards
that are in place for its use. And, third, the issue would have
to go to the President. Those steps may never be taken, but if
they are, I commit to you today that this Committee will be
notified of the fact in the same manner as the Intelligence
Committees.
Given that waterboarding is not part of the current program
and may never be added to the current program, I do not think
it would be appropriate for me to pass definitive judgment on
the technique's legality. I understand fully that you and other
members of the Committee may disagree with that decision. And I
also appreciate the public interest in this issue and the
sincerity and the strength of the views that you and your
colleagues have expressed. But as I explained during the
confirmation process, I do not believe that it is advisable to
address difficult legal questions in the absence of actual
facts and circumstances. That this issue has generated such
intense public interest and debate is no reason to ignore that
principle. In fact, it is all the more reason to follow it.
The principle that one should refrain from addressing
difficult legal questions in the absence of concrete facts and
circumstances has even more force in this context. That is
because any answer that I could give could have the effect of
articulating publicly and to our adversaries the limits and the
contours of generally worded laws that define the limits of a
highly classified interrogation program. Indeed, I understand
that a number of Senators articulated that very concern in the
fall of 2006 when they defeated an amendment that would have
expressly prohibited waterboarding.
If this were an easy question, I would not be reluctant to
offer my views on this subject, but with respect, I believe it
is not an easy question. There are some circumstances where
current law would appear clearly to prohibit waterboarding's
use, but other circumstances would present a far closer
question.
Reasonable can disagree and have disagreed about these
matters. That is not surprising. They involve application of
generally worded legal provisions to complex factual situations
in an area of highest national interest. It is precisely
because the issue is so important and the question so difficult
that I as Attorney General should not provide answers absent a
set of circumstances that call for those answers. Those
circumstances do not present themselves today and may never
present themselves in the future.
I understand that I will be asked questions about this
topic today. I will answer those questions to the best of my
ability. But I will answer them within the limits that I have
described. I recognize that those limits may make my task today
more difficult for me personally. But it is my job as Attorney
General to do what I believe the law requires and what is best
for the country, not what makes my life easier.
Despite our disagreement on this issue, I hope that the
Committee will respect my judgment on this matter, and I hope
and expect that we will find common ground on many other
matters of great importance to this Committee and to the
country, including, most importantly, our shared belief in the
important mission of the Department of Justice and the great
work of its employees.
Mr. Chairman, members of the Committee, I look forward to
your questions.
Chairman Leahy. Well, thank you. Thank you, Mr. Attorney
General, and thank you for stressing that issue. As you have
suggested, you know you will be asked questions on it, and let
me begin.
We had a recent interview in the New Yorker, and the
Director of National Intelligence Mike McConnell seemed to
recognize the hypocrisy of the position that whether
waterboarding is torture depends on the circumstances. He was
asked if waterboarding would be torture if done to him. He said
yes. Just weeks ago, the former Secretary for Homeland Security
Tom Ridge stated it even more clearly: ``There is just no doubt
in my mind under any set of rules. Waterboarding is torture.''
I give that as a preamble to my question.
You have those remarks by current and former Bush
administration officials who were responsible for protecting
America from terrorism. Do you agree with them--and with me,
for that matter--that waterboarding an American citizen
anywhere in the world is torture and illegal? Waterboarding an
American citizen anywhere in the world is illegal and torture?
Attorney General Mukasey. Senator, without going into
detail about what they said, I understood what they said to
have expressed their personal points of view. The one thing
that separates me from them is that I am the Attorney General
and they are not, that when I pronounce on the reach of general
legal principles, that is taken as a statement of how far those
principles--
Chairman Leahy. So you disagree with them?
Attorney General Mukasey. They expressed their personal
view.
Chairman Leahy. Well, Secretary Ridge was expressing a view
he had when he was head of Homeland Security. He considered
waterboarding an American to be torture. You are not willing to
state that as unequivocally as he did for the reasons you have
stated. Is that correct?
Attorney General Mukasey. I don't know what underlay his
logic, and I don't know that it was described in his statement.
I know what my function is and what my office is now, and I
know that if I address a difficult legal question without
actually having concrete and actual circumstances before me,
two things can result: One is that people who are hostile to us
can look to that as an authoritative statement of what--how
this country applies its laws and how it will continue to apply
its laws.
Chairman Leahy. Well, it is interesting. You have Ridge
saying it would be torture and McConnell saying it would be
torture. Then we have our State Department equivocating on what
they would say if an American was picked up abroad and
subjected to this or if any of our military were picked up and
subjected to this. I think the failure to say something
probably puts some of our people in more danger than not. But I
understand your answer, and I am sure you understand my
disagreement with it.
Attorney General Mukasey. One point that you made about our
military, our military is not subjected to any danger at all
and shouldn't be subjected to any danger at all by anything
that I have said or, indeed, that they have said. Our military
fights in uniform, follows a recognized chain of command,
doesn't target civilians, and is entitled to and should receive
the protections of the Geneva Conventions, just as we--
Chairman Leahy. I understand that.
Attorney General Mukasey.--protections to the--
Chairman Leahy. I understand that, Mr. Attorney General. I
am talking about--
Attorney General Mukasey.--troops that we capture.
Chairman Leahy. I am talking about what the State
Department said when they wouldn't--when they were unwilling to
state unequivocally that in a situation like that it would be
torture. And I am afraid this may, as some of the military
people have said, this may put their people in more danger.
Let me ask you, because there are going to be others asking
about this waterboarding, you mentioned FISA and the importance
of it, the Foreign Intelligence Surveillance Act. A recent
audit by the Department of Justice Inspector General found that
the FBI repeatedly failed to pay its telephone bills, the
failure resulting in the telecommunication companies cutting
off wiretaps, including FISA wiretaps, of alleged terrorists.
Over half of the nearly thousand payments studied were not done
in time. The IG said this resulted in telecommunications
carriers actually disconnecting phone lines established to
deliver surveillance results to the FBI, including at least one
case of a FISA wiretap.
Now, you and others from the administration have spoken
repeatedly about how critical FISA surveillance is to our
national security. I agree with you. I agree with the
administration on that. So if it is that important to our
national security, how did we screw up and not pay the bill and
have it get cut off? I mean, you cannot have on the one hand
the President lecturing the Congress saying we have got to have
this immediately and his own administration does not pay the
bill so it gets cut off. Is there a disconnect--no pun
intended--here?
Attorney General Mukasey. There is literally a disconnect.
As I understand it, that resulted from a failure to have in
place a mechanism for oversight, which, as I understand it, has
since been put in place, so as to make sure not simply that
bills get paid--that is pretty basic--but that proper
procedures are followed.
Chairman Leahy. Well, if they were cutting these off
because they were not paid, what payments were made to these
telecom companies to compensate for their participation in the
surveillance efforts during the 5 years prior to it coming
under FISA?
Attorney General Mukasey. I do not know.
Chairman Leahy. Can you get that answer for us?
Attorney General Mukasey. If it is--if that subject itself
is not classified, I can get the answer. Whether a company did
or did not participate, as I understand it, is itself
classified information. So that whether sums can be computed
and presented in a way that does not betray that is something
that I think would have to be worked out and then I would have
to look at it, and I will look at it.
Chairman Leahy. I know you are looking into these tapes,
the CIA tapes of waterboarding that were destroyed. Are you
looking into the question of the destruction or are you looking
into the question of the conduct that was shown on the tapes?
Attorney General Mukasey. Actually, I am not looking into
it. I appointed an experienced prosecutor to act as--
Chairman Leahy. Well, Justice, by ``you,'' I mean the
Justice Department has opened a formal investigation into
whether destroying those tapes was a crime. Is that--
investigators from the U.S. Attorney's Office, are they also
going to look into the fact that what was on it, whether that
was a crime or not?
Attorney General Mukasey. That investigation is going to go
step by step, fact by fact, witness by witness, the same way
that any other investigation goes. If it leads to showing
motive, then it leads to showing motive, and I am sure that
will be explored, if it has to be. But the person who controls
that is the prosecutor, who is very able and who has able
assistants and an experienced FBI agent who is providing the
investigative--
Chairman Leahy. Well, we will be talking with him. My last
question, I have been--we read in the paper this morning that
you were in line to receive a monitoring contract in connection
with the diversion of a corporate criminal case, probably
indicating again the sacrifice you have made financially to
take this job. But some of these contracts have concerned me.
There is one worth between $28 million and $52 million that the
New Jersey U.S. Attorney Christopher Christie directed to the
firm of former Attorney General John Ashcroft. No public
notice, no bidding. And I have sent you a letter on that. I am
waiting for an answer regarding that use and award.
How did you come to be considered in this? I realize not
the one that we are talking about with the former Attorney
General, but how did you get considered?
Attorney General Mukasey. The short answer, I was--I
believe I was proposed initially by the company. That process
took a very long time, and a funny thing--I did not actually
read this morning's news article, although I was told that it
was going to be forthcoming. I learned when I visited the Fraud
Section, which was doing the selection, that it had not been
completed at the time that I was nominated--I would like to
think that--and that it wasn't the fact that I had lost out and
somebody else actually got it. But I was under consideration.
That said, the Justice Department has been looking at the
phenomenon of monitorships because they have increased as
prosecutions of corporations have increased, and deferred
prosecution agreements or non-prosecution agreements have
become more prevalent to assure that whatever happened is
rooted out, people are prosecuted, and at the same time
corporations are not destroyed as a result. That often includes
the use of monitors. And we were aware of that, and we were
taking a look at it to see whether we needed standards, whether
standards could be formulated in a way that could be applied
across the board or in distinct situations. There are monitors
appointed in corporate prosecutions. There are monitors
appointed when labor unions are found to have been dishonest.
There are monitors appointed when civil rights violations are
found to occur to make sure that they don't recur. So there are
various situations.
So as far as it being a no-bid contract, I think it bears
emphasis that we are not talking here about public money. The
money came from or is to come from the corporation, not from
the Government. But, yes, we are looking at the phenomenon.
Yes, we are going to see whether we ought to have standards and
whether there ought to be, in any event, a report to the
Department every time--
Chairman Leahy. Can you let us know?
Attorney General Mukasey. I will
Chairman Leahy. Thank you.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Attorney General Mukasey, we have seen the expansion of
assertions of Presidential authority under Article II,
illustrated, as I said earlier, by his violating the Foreign
Intelligence Surveillance Act, saying that he had Article II
powers as Commander-in-Chief. We have seen the President
disregard the National Security Act of 1947, which mandates
telling the Intelligence Committees of both Houses when he
undertakes a program like the Terrorist Surveillance Program.
And the question comes down to whether the President may assert
Article II power to violate the U.S. statute prohibiting
torture and to act at variance with the Geneva Convention to
protect America.
I am going to read you a judgment by former Deputy Attorney
General Phillip Heymann, now a Harvard professor, in a book he
wrote to this effect: ``For the extremely rare case of an
immediate threat to U.S. lives, unavoidable in any other way,
we would allow the President to personally authorize an
exception to the U.S. obligation under the Convention Against
Torture and the U.S. Constitution not to engage in cruel,
inhuman, or degrading treatment short of torture, so long as
the decision by the President is based on written findings
documenting his reasons and is promptly submitted to the
appropriate congressional committees.''
My question to you is that under the standard which former
Deputy Attorney General Heymann articulates, is there a
legitimate argument that the President has Article II powers to
undertake such conduct?
Attorney General Mukasey. There are a number of concepts in
your question, including whether he has authority to undertake
torture. Torture, as you know, is now unlawful under American
law. I can't contemplate any situation in which this President
would assert Article II authority to do something that the law
forbids.
Senator Specter. Well, he did just that in violating the
Foreign Intelligence Surveillance Act. He did just that in
disregarding the express mandate of the National Security Act
to notify the Intelligence Committees. Didn't he?
Attorney General Mukasey. I think we are now in a situation
where both of those issues have been brought within statutes,
and that is the procedure going forward.
Senator Specter. That is not the point. The point is that
he acted in violation of statutes. Didn't he?
Attorney General Mukasey. I don't know whether he acted in
violation of statutes.
Senator Specter. Well, didn't he act in violation of the
Foreign Intelligence Surveillance Act? It expressly mandates
you have to go to a court to get an order for a wiretapping.
There is really no dispute about that, is there?
Attorney General Mukasey. It required an order with regard
to wire communications when that was a surrogate for foreign
communications--for domestic communications. When foreign
communications became something that traveled by wire--
Senator Specter. I am not talking about foreign
communications. I am talking about wiretapping U.S. citizens in
the United States. The Terrorist Surveillance Program undertook
to do that.
Well, I am not getting very far there. Let me move on to
the foreign--what we are currently debating on retroactive
immunity for the telephone companies.
Senator Leahy and I wrote to you on December 10th asking
you for information about the destruction of CIA tapes, and we
got back a letter very promptly saying that, ``I will not
provide information in response to your letter.'' A pretty flat
refusal. And the reason here is because it involves pending
matters.
Well, I am not going to go into our prior discussions of
what I thought was a commitment from you under the legal
authority for this Committee to go into pending matters. And
you say here your policy is based in part in avoiding any
perception that our law enforcement decisions are subject to
political influence.
It is hard for me to say how a letter from Senator Leahy
and myself constitutes political influence. But we now find
last week that Judge Kennedy in the district court here in
Washington has issued an order concerning information about the
destruction of the tapes.
Do you intend to comply with the judge's request?
Attorney General Mukasey. I have not seen the order. I
don't know whether it is subject to appeal. I do know that the
considerations underlying a declination to provide Congress
with information relating to the destruction of tapes is not
based--is certainly no absolute and is not a ``never'' issue.
It is based on the fact that if--
Senator Specter. Well, you say it is not ``never,'' but it
is certainly not now. But let me move on to the central point
about the amendment which Senator Whitehouse and I have
offered, which seeks middle ground. It seeks to enable the
Government to continue to get whatever information there are
from the telephone companies by substituting the Government as
a party defendant in the same posture--no governmental immunity
defense. State secrets, yes.
I use the illustration of the CIA tapes because the
congressional oversight has been so ineffective,
notwithstanding Herculean efforts for the last 3 years, during
my chairmanship and the last year under Senator Leahy's
chairmanship. But the courts provide a balance, separation of
powers, Rasul, the only effective way of dealing with what is
argued to be executive excesses is through the courts.
Now, the amendment which Senator Whitehouse and I have
offered would enable the Government to continue getting the
information, but it would not shut out the plaintiffs, would
not close down the courts. What is wrong with that as an
accommodation, Mr. Attorney General?
Attorney General Mukasey. I think what is wrong with it is
that it would continue to make the conduct of the companies
front and center the issue in the case. The only thing it would
substitute is who pays in the event of a finding of liability.
Senator Specter. Well, why shouldn't that conduct be front
and center? Why shouldn't it be subject to a challenge of an
unlawful invasion of privacy? Why should the courts be
foreclosed from making that decision? When this Committee under
my chairmanship tried to get the records of the telephone
companies, the Vice President, Vice President Cheney, went
behind my back, contacted the members of the Committee,
Republican side, never even saw me, first or last. What is
wrong with having that issue front and center and having a
judicial inquiry and a judicial determination since this
Committee cannot get that information?
Attorney General Mukasey. What is wrong with it is two
things.
First of all, it puts--when I say it puts their behavior
front and center, what I mean is it puts means and methods in
the courts for everybody to examine and for people to become
aware of, people who shouldn't become aware of what the means
and methods are.
Second, it casts in doubt the question of whether they
acted in good faith or not in responding, as some of them may
have, to a request that they had every reason to believe was
made in good faith, that they helped the Government in the wake
of September 11. And it becomes a lesson not only to them but
to others later on that they can't trust that kind of inquiry,
that they are obligated to push back whenever they can--and
they always can--in order to guard against the possibility that
somebody might later question their judgment. That is a
dangerous thing because it could embroil us constantly in
litigation with people we want to help us.
Those companies know how technology is going to develop. We
don't. We don't just need their cooperation that can be forced.
We can force them to help us. We need their willing cooperation
in helping us going forward with a developing technology that
is developed faster and faster and faster.
We are going to sacrifice that if we are litigating the
propriety of their response to a request that has been found to
have been reasonable and has been found to have been in good
faith. And, again, it is a limited--
Senator Specter. Mr. Chairman, we will continue this debate
on the Senate floor, but I think there is a much greater danger
in having the Congress come bail out the administration with
retroactive liability for future precedents contrasted with
treating the telephone companies fairly by substituting the
Government as a party defendant, which indemnifies, in effect,
and eliminates the risk to them. Future people will know that
we will act reasonably, but we won't give blanket immunity,
carte blanche bailout.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Kennedy.
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman.
General Mukasey, I want to at the outset commend you for
taking a number of positive steps to investigate the
destruction of the CIA interrogation programs, including
launching a full-scale criminal investigation, moving the
investigation out of Main Justice; accepting the recusal of the
Eastern District of Virginia's U.S. Attorney's Office;
appointing John Durham, a seasoned and respected prosecutor,
making the FBI the lead investigative agency. Each of these
steps shows a sensitivity to potential conflicts of interest
and a desire for a meaningful investigation.
I am troubled you decided not to make Mr. Durham an
Independent Counsel and ensure against even the appearance of
impropriety. I hope to have an opportunity to return to this
subject later on, but I want to focus on two issues in the time
that I have, and I will submit some other questions. One is on
the waterboarding, and the other is about the Civil Rights
Division and voting that I am very much concerned about.
In the issue, as you know, waterboarding has become the
worldwide symbol for America's debate over the torture, and it
became the centerpiece of your confirmation hearing after you
refused to take a position whether it is lawful. In fact, even
though you claim to be opposed to torture, you refuse to say
anything whatever on the crucial questions of what constitutes
torture and who gets to decide the issue. It is like saying
that you are opposed to stealing but not quite sure whether
bank robbery would qualify.
So the courts and military tribunals have consistently
agreed that waterboarding is an unlawful act of torture, but
you refuse to say so. And then in a letter to the Committee
sent last night, you once again refused to state the obvious,
that waterboarding has been and continues to be an unlawful act
of torture. Your letter told us that the CIA does not currently
use waterboarding, but that fact had already been disclosed.
What your letter completely ignored is the fact that the CIA
did use waterboarding and no one is being held accountable.
In your letter, you would not even commit to refuse to
bring waterboarding back should the CIA want to do so. You
would not take waterboarding off the table. Your letter also
ignored the fact that the CIA continues to use stress
positions, extreme sleep deprivation, and other techniques that
are every bit as abusive as waterboarding, techniques that our
own Department of Defense has rejected as illegal, immoral,
ineffective, and damaging to America's global standing and the
safety of our own servicemen and -women overseas.
So I will not even bother to ask you whether waterboarding
counts as torture under our laws because I know from your
letter that we will not get a straight answer. So let me ask
you this: Would waterboarding be torture if it was done to you?
Attorney General Mukasey. I would feel that it was. There
are numerous--I remember studying Latin in school, and one of
the people I studied was Cicero, and Cicero used to, when he
made speeches, would list all the things he was going to pass
over without mentioning them, and then he was pass over without
mentioning them, and a lot of that is in your question. You say
I am going to pass by this and not ask you about it and pass by
that and not ask about it.
There are numerous things that I would differ with. You say
that waterboarding is obviously torture, and you use the
example of taking something--bank robbery obviously being
stealing. That assumes, of course, the answer to the question,
which is that waterboarding is, in fact, torture just the same
way that bank robbery is, in fact, stealing. I think there are
numerous other things that I would argue with. I simply point
out that this is an issue on which people of equal intelligence
and equal good faith and equal vehemence have differed, and
have differed within this chamber.
During the debate on the Military Commissions Act when some
people thought that it was unnecessary, some people thought
that it obviously barred waterboarding, other people thought
that it was so broadly worded that it would allow anything, and
there were expressions on both sides.
I should not go into, because of the office that I have,
the detailed way in which the Department would apply general
language to a particular situation. Notably, when I am
presented only with a question that tells me only part of what
I would be asked to rule on, if I were ever asked to rule on--
Senator Kennedy. Well, as you know, the Director of
National Intelligence, Admiral McConnell, stated, ``If I had
water draining in my nose, oh, God, I just can't imagine how
painful. Whether it is torture by anybody else's definition,
for me waterboarding would be torture.
Now, you say facts and circumstances. Let me ask you, under
what facts and circumstances exactly would it be lawful to
waterboard a prisoner?
Attorney General Mukasey. For me to answer that question
would be for me to do precisely what I said I shouldn't do
because I would be, No. 1, imagining facts and circumstances
that are not present and thereby telling our enemies exactly
what they can expect in those eventualities. Those
eventualities may never occur.
I would also be telling people in the field, when I am not
faced with a particular situation, what they have to refrain
from or not refrain from in a situation that is not performing
and in situations that they may find analogous. I shouldn't do
either one of those.
Senator Kennedy. Well, let me ask then finally, are there
any interrogation techniques that you would find to be illegal,
fundamentally illegal?
Attorney General Mukasey. There are statutes that describe
specifically what we may not do. We may not maim. We may not
rape. There is a whole list of specifically barred techniques.
Senator Kennedy. But waterboarding isn't on that list?
Attorney General Mukasey. It is not.
Senator Kennedy. OK. Let me go to another issue. It has
been reported that the Department of Homeland Security received
1.4 million naturalization applications between October 2006
and September 2007. Over the past year, the naturalization
backlog has increased from 6 months to 18 months. This is
troubling. A significant number of potential U.S. citizens
filed for naturalization hoping to vote in the upcoming
November election. Thousands of applicants have been left in
limbo. Basic fairness dictates that these naturalization
applications are processed in time to allow these individuals
the chance to participate in our democracy. The fees have been
increased. The administration has not asked for any additional
kind of help and assistance to do it. All they have told us is
the line is growing longer and longer and longer and longer,
and there are going to be hundreds of thousands of people who
are qualified to be citizens and vote who will not vote.
What will the Justice Department do about it?
Attorney General Mukasey. Well, as you point out, the
question of processing immigration applications is within the
jurisdiction of the Department of Homeland Security. That said,
the Justice Department has done and is going to continue to do
everything it can to make sure that everybody who is authorized
to vote can vote. We have monitors going out to polls to make
sure that people who are authorized to vote can vote. We have
brought cases challenging--
Senator Kennedy. Well, just on this, General, because my
time is up, what is the Department doing to give a sense of
urgency to the Department of Homeland Security to move ahead on
this or to make sure that individuals who are otherwise
eligible are not going to be excluded from participating? I
mean, we are talking about suppression and all the rest. When
you have got hundreds of thousands of people who are going to
be denied the opportunity to vote, it seems to me that we are
not dealing with the fundamental issue.
Attorney General Mukasey. I will admit to you candidly that
I don't know what the contacts are between--
Senator Kennedy. OK. Would you work with us? Would you,
please?
Attorney General Mukasey. I will do two things. No. 1, I
will find out what the contacts have been, if any. And, No. 2,
I will work with you, yes.
Senator Kennedy. Thank you.
Chairman Leahy. Just so we can have some idea where we are
going here, Senator Grassley will be next, and I am going to
recognize him in just a moment. We will then go to Senator
Biden. I am taking the list from the Republican side of the
order they are in. After Senator Grassley, Senator Biden, then
Senator Sessions, just so everybody will know.
Senator Grassley, you are recognized.
Senator Grassley. Thank you, Mr. Chairman.
I want to start by asking you for unanimous consent that my
opening statement be made a part of the record, along with
documents that I am going to discuss with my questions.
Chairman Leahy. Without objection, it will be part of the
record.
Senator Grassley. Thank you.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Grassley. General Mukasey, during your confirmation
hearing you assured me that you would assist my congressional
oversight efforts with the Department. I appreciate your
cooperation. You know I'll hold you to your word.
I'd like you to know that, prior to this hearing, the
Department provided responses to requests dating back to March,
2007. Unfortunately, we received these responses on Friday and
have had just 4 days to digest nearly 250 pages of answers.
Buried in the responses from the FBI was response to questions
64 through 83 that said, ``Answers will be provided
separately.'' Of course, they were not provided separately.
For you, I am troubled when I get responses stating one
thing, but then you do another. When can I expect this response
from the FBI that I've been waiting for since March, 2007, and
can I expect these answers before a full year has passed?
Attorney General Mukasey. I will admit to you that I don't
know precisely what questions, is it 64 through 83, are. But I
will talk to the Director about what they are, and about why
the delay, and about when we can foresee getting answers to
them. I'm sorry for the last-minute part.
Senator Grassley. Now, a question on whistle-blowers.
Attorney General Mukasey. Beg your pardon?
Senator Grassley. Another question. At your confirmation
hearing, you testified about whistle-blowers at the FBI and
said, ``People ought to be encouraged to come forward and they
should be protected.'' The FBI and the Justice Department have
not always had a culture that supported whistle-blowers.
Instead, the culture usually worked to prevent whistle-blowing
through intimidation and retaliation.
One of the most difficult issues in whistle-blowing is that
of national security whistle-blowers. These individuals have
security clearances that prevent the disclosure of our Nation's
closest-held secrets. I understand that a security clearance is
a privilege and not a right. However, individuals with security
clearances who witness wrongdoings often face a catch-22. They
can either report the wrongdoing to supervisors who may
retaliate against them, or they can sit silent and let the
wrongdoing continue. Of course, either situation is
unacceptable.
As a solution, the Senate unanimously passed S. 274, the
Federal Employee Protection Act of 2007. This bill attempts to
strike balance. It allows individuals who know of wrongdoing in
classified matters to come forward and report that wrongdoing
to Congress, but it only allows disclosure to specific persons
cleared to hear classified information. This bipartisan
legislation would ensure that national security information
remains secret, while allowing Congress to conduct the
oversight required under the Constitution.
On January 22, 2008, you, along with the Director of
National Intelligence, Director McConnell, Secretary Gates, and
Secretary Chertoff signed a letter objecting to S. 274.
[Letter appears as a submission for the record.]
I am concerned by statements in this letter which claim
that secure reporting mechanisms for whistle-blowers are
somehow unconstitutional or jeopardize national security. While
I agree that this information needs to be secure, Congress must
be able to conduct oversight of the executive branch on matters
involving national security.
Further, I find it difficult to reconcile this letter with
statements made at your confirmation hearings. Now, I am not
for blanket privilege allowing whistle-blowers to release
classified information at will. That would be impractical and
it wouldn't be safe for our country. However, we need a secure
mechanism to allow whistle- blowers to make protected
disclosures to Congress.
Why doesn't Congress have a right to classified information
when reporting that information is necessary to report
wrongdoing, and why isn't it enough to require that whistle-
blowers report classified information to those with the
necessary security clearance?
Attorney General Mukasey. The issue is, in part, but not
entirely, security clearance. The process that you've described
cuts off the supervisory chain and cuts off even the President
from the chain of reporting. That raises separation of powers
issues and creates a situation where somebody is essentially
encouraged to bypass supervisors, not to take it up the line,
not to take it as far as he can, but simply to go to a Member
of Congress who may have a security clearance, but to cut off
proper supervision. That may remedy the problem. I recognize
that problems occasionally exist, but I, and the signatories to
that letter, the DNI, the--I believe the Director of the FBI,
and the Secretary of Homeland Security believe that that's not
the way to do it.
Senator Grassley. Well, isn't it funny that a law that
passed the Senate unanimously, that surely had input from the
administrative branch of government, now is not exactly the way
to do it, so we wait another 5 years to get proper
congressional oversight? You know, it just doesn't seem like
the real thing. It just seems like every road block is being
put in the way of Congress doing its job, and can't you trust
people that have a security clearance, whether it is Joe Blow,
or whether it's Mary Smith, or whether it's Paul Jones. It
seems to me, if they've got a security clearance, they've got a
security clearance and that's the protection you need.
Attorney General Mukasey. I don't think it's a question of
trust. I think it's a question of maintaining the executive's
right to supervise its employees, up to and including the
President, and where in that chain you permit somebody to go to
somebody else. I agree that it's a difficult issue. I agree
that it's a sensitive issue. It was simply our view that that
was not the way to do it.
Senator Grassley. Then I think you have a problem. And I'll
stop, Mr. Chairman, here. But it seems to me that you have a
problem reconciling what you say about the chain of command
that wants to hide wrongdoing in the first place. If you're
talking about going all the way up to the President, in between
the President and the janitor you've got plenty of people that
don't want Congress to know if something is wrong because they
don't want egg on their face.
Attorney General Mukasey. I don't think it's a matter of
wanting to hide wrongdoing. We are certainly willing to work
with committees and with Senators, and we have, and we will in
the future. I'm not saying that this is a drawing of the line
in the sand. This is this particular bill, and it's something
we're willing to work with you on, have worked with you on, and
will continue to work with you on.
Senator Grassley. OK. Thank you.
Chairman Leahy. Thank you.
As you and I discussed yesterday, a bill that Senator
Cornyn and I have done through bipartisan help on FOIA--and
there will be questions on that too as we followup.
Senator Biden.
Senator Biden. Thank you very much, Mr. Chairman.
General, it's nice to see you. I'm sorry I haven't had a
chance to formally meet you before.
Attorney General Mukasey. Me, too. Although we did talk on
the telephone, briefly.
Senator Biden. Yes. But you have a lot of fans who are
friends of mine who have said very good things about you, and
it's nice to see you in person.
General, I'm a little confused. I don't want to go into
whether waterboarding is torture or not. I want to understand
sort of the methodology you use in trying to--- because some of
what you say--maybe it's just that I'm a little slow--doesn't
seem to make a lot of sense to me about this issue of
waterboarding.
When you boil it all down, in the answers I heard today and
what I've read, what you've submitted, it appears as though
whether or not waterboarding is torture is a relative question,
whereas it's not a relative question whether or not you hung
someone by their thumbs, or you hung them upside down by their
feet. I mean, you talk about waterboarding in relative terms.
For example, am I getting it right? If a person in the
government, CIA or any government agency, engaged in
waterboarding of a captured prisoner and the purpose of it was
because they believed that prisoner knew where there was a
nuclear weapon hidden, about to be detonated in the city of
Washington, then that might be OK. But if they just
waterboarded them just to find out where they purchased their
airline ticket, that might not be OK. That's what it seems like
you're saying.
Attorney General Mukasey. With respect, I don't think
that's what I'm saying. I don't think I'm saying it is simply a
relative issue. There is a statute under which it is a relative
issue. I think the Detainee Treatment Act engages the standard
under the Constitution, which is a ``shocks the conscience''
standard, which is essentially a balancing test of the value of
doing something as against the cost of doing it.
Senator Biden. When you say ``against the cost of doing
it'' do you mean the cost that might occur in human life if you
fail to do it? Do you mean the cost in terms of--
Attorney General Mukasey. No.
Senator Biden.--our sensibilities and what we think is
appropriate and inappropriate behavior as a civilized society?
Attorney General Mukasey. I chose the--I chose the--
Senator Biden. What do you mean?
Attorney General Mukasey. I chose the wrong word. I meant
the heinousness of doing it, the cruelty of doing it balanced
against the value.
Senator Biden. Balanced against what value?
Attorney General Mukasey. The value of what information you
might get.
Senator Biden. That's what I thought you said.
Attorney General Mukasey. In one of your hypotheticals,
there was getting some historical information or some other
information that couldn't be used to save lives, and one
wouldn't have to get to the question of whether that was
torture or not to find that it would shock the conscience to do
it in those circumstances.
Senator Biden. I see. Well, I do understand it then.
Attorney General Mukasey. That's--
Senator Biden. So the shocking of the conscience is, again,
where the relevance comes in. If the purpose of the
waterboarding was to, you know, save humanity from 20 nuclear
weapons going off, that's one thing. If the purpose of the
waterboarding was to find out who the commanding officer of
that individual was, that's another thing. I've never heard the
statute--I've never heard torture referenced in those ways.
Attorney General Mukasey. That's not--that's not--
Senator Biden. I never heard--
Attorney General Mukasey. That's not in the torture
statute.
Senator Biden. Well, I've never heard any discussion of
shocking the conscience in those ways. I didn't think shocking
the conscience had any relationship to the end being sought. I
thought shocking the conscience had to do with what we
considered to be basic societal values, things that we held
dear, what we consider to be civilized behavior. You're the
first person I've ever heard say what you just said.
Now, I'd be delighted--and I don't want to pursue this,
unless you do--to have your staff at the Justice Department
give me anyone else who, in the past, referenced the discussion
of shocking the conscience in the context you just referenced
it. I find it to be fairly unique. Matter of fact, it shocks my
conscience a little bit. But I find it--I've never heard that
discussion.
You know, you and I went to law school. I went to a
Catholic school where I had to take two semesters in high
school, two periods a day, of Latin. I remember Sister Rhode,
too, although even as an alter boy I forget my Latin. But the
truth of the matter is, I've just never heard the issue of
torture discussed in--or what constitutes torture, which is
defined by shocking the conscience, in terms of the relative
benefit that might be gained from engaging in a technique. I
find that pretty--none of the Aristotlean logic I was trained
by ever got me there. I don't understand that premise.
But at any rate, let me move on. I find one of the--- you
know, we are all Senators, very proud--hopefully very proud--of
what we try to accomplish. One of the things I take great pride
in, and it's self-serving, is having authored the Crime Control
Act of 1994, putting 100,000 cops on the street and putting $10
billion into prevention, $10 billion into prisons. I thought
that was a pretty good deal. I thought it worked pretty well.
I have essentially reintroduced that and gotten
overwhelming support in the House and the Senate. We passed it,
reauthorizing the COPS program, primarily, but it goes beyond
that. The President--it was passed in the omnibus bill. The
omnibus bill got vetoed. When the bill came back to us in a
compromise, the Burn grants were dropped significantly and the
COPS program was essentially all but eliminated again.
The rationale proffered to me was that, you know, violent
crime is down. It's near historic lows. Your proposals relating
to dealing with violent crime--your, the administration--are
sufficient, although $1 billion less than we had been spending,
to deal with the problem. We state statistics of violent crime
being down or up by less than a percent in 2005, 2006, 2007, et
cetera.
But the fact is, in 2006, there was still 1,417,774 violent
crimes committed in America, and 17,034 murders. Now, that's
down from the high of 1992 of 23,760. The numbers are not
particularly relevant, except the point I want to make is this:
I hope you'll reconsider the utility and the necessity of the
Biden crime proposal that was put back in, with the help of a
lot of people around this table, because I am not prepared to
accept 1,400,000 violent crimes a year as an acceptable
standard for American behavior.
Disraeli once said, ``There are three kinds of lies: lies,
damned lies, and statistics.'' I would respectfully suggest
that the statistical analysis of crime being up or down begs
the question. I find it absolutely unacceptable that, in the
United States of America, we still have 1,417,774 violent
crimes committed in 2006, 17,034 murders.
So I would think that the single biggest bang for the buck,
based upon all the data your office has acknowledged in the
past, that the more cops we have on the street, the further the
violent crime drops. It's a simple proposition. I've been on
this committee for years and years. I was chairman of it, or
Ranking Member, for 17 years.
Chairman Leahy. It is time.
Senator Biden. I will conclude with this comment. The only
thing I learned for sure about crime is, if there are four
corners, three cops on three of the four corners, if the crime
is going to be committed it will be committed where the cop is
not. So, I'd urge you to take a look at the legislation again.
Attorney General Mukasey. I agree with you that the
strategy is not to tolerate any level of violent crime,
certainly not at the level that you've suggested. What we are
trying to do is to target grants to go where the need is and to
gather information on what works best, and to get it out to the
people who need it.
Senator Biden. With all due respect, we know what works
best. As old Ronald Reagan used to say, ``If it ain't broke,
don't fix it.'' It was working. You guys broke it.
Chairman Leahy. Senator Sessions.
Senator Sessions. Thank you.
General Mukasey, I'd like to thank you for your leadership.
I do believe you've been a positive force at the Department of
Justice. You've taken on a difficult challenge at a difficult
time and we're glad you're there.
Just to clarify an issue that just continues to disturb me,
it was said earlier that waterboarding has become a worldwide
symbol, I suppose, of abuse by Americans of people who are
captured. But I'd like to ask you this. That technique that has
been so discussed was never used, and has never been used, by
the U.S. military. Is that correct?
Attorney General Mukasey. As far as I know.
Senator Sessions. This was basically a technique used by
the CIA, apparently, in a few cases, a limited number of cases?
Attorney General Mukasey. I'm not authorized to talk about
what the CIA has done in the past. The only thing I was
authorized to say is that it is not now part of the program.
Senator Sessions. And the--
Attorney General Mukasey. The only way it can be put back
in--
Senator Sessions. So it's not a part of the program. We've
never had these reckless actions--repeated actions, as has been
suggested--so often to abuse prisoners. The fact that the
American military, at Abu Ghraib, identified not a problem of
torture for information, but just prisoner abuse, the Abu
Ghraib scandal, and they prosecuted those people. So I just
wanted to make this clear, that I think our military, according
to Mr. Goldsmith, and I believe the CIA, have lawyered this a
lot. People can disagree, but it has not been a reckless
activity that's gone on widescale throughout our government.
Attorney General Mukasey. That's correct, so far as I know.
And the Department of Justice has prosecuted a CIA contract
employee for prisoner abuse, a man named David Pisaro, and got
a substantial sentence when prisoner abuse took place. That was
somebody in the CIA, not somebody in the military.
Senator Sessions. Well, I think this is important. I think
it's been an embarrassment to our Nation from a lot of these
hearings when we've suggested widescale abuse that is not true.
Let me ask you another question to followup on our
discussions when you were confirmed. Under current Federal law,
illegal entry into the United States is a crime: Section 1325,
improper entry by an alien is a misdemeanor up to 6 months, and
a felony for a second entry.
However, until the recent implementation of Operation
Streamline,a zero-tolerance prosecution policy now in place in
3 of the 20 border sections, Del Rio, Yuma, Laredo, no U.S.
Attorney's Office has been actively prosecuting those cases.
Now almost every illegal entry in those areas is being
prosecuted. So, this was an attempt, a testing of a zero-
tolerance prosecution policy. It does seem to be paying
results.
According to the Homeland Security briefing paper, since
its implementation, arrests this fiscal year have decreased 50
percent in Del Rio and 68 percent in Yuma. This steep decline
in illegal entries proves how important it is to prosecute
routine crimes when you're trying to fix a broken system. This
is the broken windows concept, I suggest, that New York made
famous. Start with the smaller crimes.
According to a briefing document by Homeland Security, ``It
is critical that the second offense for illegal entry carries a
minimum sentence of 30 days in jail and that a third offense
carry a minimum sentence of 90 days.'' When I asked Attorney
General Gonzales about the problem, he pledged he would pursue
replicating it across the entire border and work to convince
the Federal magistrate judges to participate, and their
cooperation is necessary. I never got an update from him on
that progress, but I hope that you'll give me one.
When you and I spoke about this issue at your confirmation
hearing, you answered very ably, I thought. You said, ``We
can't have a system in which the only sanction that results
from an attempt to come into this country illegally is that you
get to try it again. That's the kind of catch-and-release
program that we've had, and brought us to trouble.'' Well said.
I asked you to commit to examining Operation Streamline
fully and you said you would ``try to look at it and followup
if we have the resources.'' You stated that you ``recognized
it's a problem of allocation of resources'', but that you
agreed ``we need to try to bring to bear some sanctions so that
the only result of coming in illegally is not that you get to
try again.''
Today in your written testimony, you described how you
visited the southwest border last month and how the $7 million
Congress has appropriated will allow you to deploy 40
prosecutors and 20 support staff to the border.
First, $7 million is not a lot of money. If we need more
money, I think you should ask for it. We've been talking about
$24 million contracts here just to supervise one corrupt
business practice, apparently.
But, first, are you committed to expanding Operation
Streamline to all 20 border sectors by the end of the year?
Attorney General Mukasey. I am committed to pursuing
Operation Streamline where it can be profitably pursued. The
one thing that my visit to the southwest showed me was that it
is hard to pursue a one-size-fits-all strategy simply because
there are different problems being encountered in different
parts of the border. They have one strategy that they follow of
taking people who are confined for short periods of time after
their prosecution and releasing them at a point that is very
distant from where they first entered.
It's a relatively simple thing, but it makes it enormously
harder for them to hook up with the people who got them in in
the first place and to go back in. That's something that's
being pursued. We have to make sure that we have a system
behind the prosecutors who are putting cases into the pipeline
to absorb those cases, to handle them, and to prosecute them
properly.
Senator Sessions. Well, Mr. Attorney General, just to wrap
up, I believe this works. I believe you've proven that it
works. I believe that the cost--you may need some more money,
but it's not too much. I believe we can afford that, because if
you can achieve a 50 percent reduction in illegal entry by just
following existing law, we ought to execute that. Will you
continue to monitor it, and will you support expanding if you
believe it works?
Attorney General Mukasey. I will, and I think it has been
an effective program.
Senator Sessions. Thank you.
Chairman Leahy. Thank you.
I will put in the record at this point a letter from
Admiral Gutter, who had been Judge Advocate General of the
Navy, Admiral Hudson, who had been Judge Advocate General of
the Navy, General Fugue, who had been Judge Advocate General of
the Army, and Brigadier General David Brahms of the U.S. Marine
Corps, who was Staff Judge Advocate to the Commandant, a letter
in which they all say waterboarding is torture, other items,
and a letter sent to you, Judge, from three of our colleagues,
Senator John McCain, Senator Lindsey Graham, Senator John
Warner, saying they consider it torture, and those will be made
part of the record.
[The letters appear as a submission for the record.]
Chairman Leahy. I would yield to Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman.
I would like to ask to comment on three local law
enforcement programs. First, the Burn Justice Assistance Grant
Program, which has been on the administration's chopping block.
It's targeted for elimination in every budget proposed by the
President. As a result of the President's veto threat last
year, funding for the Burn Program was reduced by 67 percent in
fiscal year 2008.
Back in 2001, my own State of Wisconsin received more than
$9 million in Burn funding. However, due to cuts imposed by the
President, Wisconsin will receive only about $1.6 million this
year. This has had a real impact on our State's ability to
fight crime. What we're talking about is losing prosecutors and
shutting down drug task forces, and prevention and treatment
programs all around the State.
Second, two other critical funding programs that have
continually been targeted for cuts by this administration are
the Juvenile Accountability Block Grant Program and the Title V
Local Delinquency Prevention Program. Both of these programs
expired last year, and we are currently working on legislation
to reauthorize them. The Juvenile Accountability Block Grant
Program, of course, provides funding for intervention programs
that address the urgent needs of juveniles who have had run-ins
with the law. Title V is the only Federal program that is
solely dedicated to juvenile crime prevention.
As you know, when we cut funding local programs are forced
to close their doors and an entire generation of young people
do not receive the benefits of these very important programs.
These programs need to be reauthorized and they need to be
sufficiently well funded, something which this administration
has not yet supported.
Can you provide us some idea of whether or not this funding
will be a priority of yours, as it is for many of us here?
Attorney General Mukasey. The funding of targeted programs
are certainly a priority. In fact, the President, I believe as
part of his budget, has a $200 million targeted grant program,
of which a substantial amount--I'm not sure of the precise
figure. I don't know whether it's 30 or 60--is targeted to go
to Milwaukee, which has had a specific problem, a specific
crime problem. That money is targeted to go to Milwaukee.
We have also had the Safe Streets Program Anti-Gang
Initiative, a gathering of information and the allocation of
people and funds out to those places where there is perceived
to be, and there is, an increase in crime, whether it's gang
crime or any other. So we're looking to use the funds and to
use them intelligently and target them where they're needed. I
know specifically about the issue in Milwaukee, and that we
intend to address it.
Senator Kohl. I appreciate that. I will followup with you
in the coming days on what we're going to do, particularly, as
you point out, for Milwaukee.
On Guantanamo Bay, during your confirmation hearing last
year we talked about the detention center at Guantanamo Bay. We
talked about the long list of national security experts from
inside and outside this administration who have argued that it
is in the national security interest of the United States to
close that prison. Since then, even the chairman of the Joint
Chiefs, Admiral Mullen, has said publicly that we should close
Guantanamo as soon as possible.
You would not add your name to that list. Instead, you said
that you were prepared to recommend to the President that we
take the responsible course in dealing with the people at
Guantanamo. Then you went on to say that you would get the best
people you can to give you the best advice that you can get
about what to do with Guantanamo.
So I'd like to ask you whether or not that advice has been
given and whether or not you're prepared to add your name of
the list of those who believe that we should close Guantanamo.
Attorney General Mukasey. I believe the President has said
that he wants to close Guantanamo, so long as it could be done
in a responsible way that permits us to deal with the people
who are there without simply releasing them. There is a case
before the Supreme Court with regard to the status of those
people, Boomadin, and there are a couple of questions, issues,
and matters that could result from that, including not only
whether there is a constitutionally based habeas right, but
rather--but also, I should say, whether there is some
alternative to habeas that would be sufficient to deal with
those people. That is a subject of litigation. It's a subject
that's in the Supreme Court, and it's a subject we're facing.
There is another case in the DC Circuit involving the
adequacy, or not, of combatant status review tribunals and what
we can do to improve those. That is before the DC Circuit and
it's something that we're conscious of and something we're
trying to deal with.
Senator Kohl. Mr. Attorney General, I'd like to ask you
about court secrecy. Many of us have been concerned for years
about the use of secret settlements in our courts. This issue
received a lot of attention back in the Bridgestone/Firestone
cases in the late 1990's, and yet little has been done to
reform the system in the wake of that scandal. As we learned in
a recent hearing, judges continue to provide court-endorsed
secrecy without considering public health and safety, which in
many cases has resulted in injuries that could have been
prevented.
Now, you're a former Federal judge and now you're the
Nation's top law enforcement officer. Do you believe that in
cases involving public health and safety, courts should be
required to take a closer look at protective orders and weigh
the public's interest and information about potential health
and safety dangers, along with, naturally, the proponent's
interest in confidentiality?
Attorney General Mukasey. I think courts should always take
a look at a protective order following settlement of a case,
particularly when that involves public safety. I don't know of
a case where somebody is essentially sweeping a public safety
issue under the rug in a settlement, and I would not want any
court to approve of that. That's all I can say.
Senator Kohl. Well, as I'm sure you know by the history of
this whole issue, there have been many court secrecy awards
that have occurred and that have resulted in substantial damage
to individuals because those records were swept under the rug
by the court secrecy order. My question is, do you agree that
we should require that, in issues of this sort, a judge needs
to consider public health and safety before issuing a court
secrecy decision?
Attorney General Mukasey. I think a judge should consider
the effect on public safety of keeping any settlement secret.
Senator Kohl. My time is up. Thank you very much.
Chairman Leahy. Thank you.
Senator Brownback, then Senator Feinstein, then Senator
Kyl.
Senator Brownback.
Senator Brownback. Thank you very much, Mr. Chairman.
Welcome, Attorney General. I want to continue with you on
Guantanamo, if I could. I appreciate your articulation of
factors that you're looking at on Guantanamo Bay, on closing
it, and the President's point.
I want to invite you to my State and to Levinworth to the
disciplinary barracks, which is the site most often cited, if
we're going to close Guantanamo, to move the detainees to, is
in my State and the disciplinary barracks. The reason I want to
invite you there is, I don't think we're set for this set of
detainees to move there to this facility. I've toured the
facility. It's a relatively new facility. I think it's an
excellent facility, but I don't think it's set for this sort of
the detainees that would be coming out of Guantanamo.
So, just as a very pragmatic issue, if you close Guantanamo
the detainees are going somewhere, and the current projection
is, they go to Levinworth and to the disciplinary barracks
there. I don't think we're set for that to take place. I would
hope you could come and look at it and try to appraise that
particular issue, just as a pragmatic one.
A second issue is, right next to the disciplinary barracks
is the Command and General Staff College of the military, so
most of your military leadership is going through the place
that's within three miles of the disciplinary barracks, maybe
less than that. I'm not sure that's wise. You listed a series
of legal questions about moving the detainees to U.S. soil
which I think are appropriate. There are also a couple of very
pragmatic questions that I don't think is necessarily a wise
route to go at this point in time. I don't think we're ready to
handle this.
Attorney General Mukasey. I agree with you that there are
practical considerations. I don't know of any representative
from any State who has acknowledged that his State, or any
facility in his State, is ready to accept people who are at
Guantanamo. I just don't. But beyond that, our other
considerations, such as the effect legally of bringing people
Stateside, there are people who have said that they intend to
bring a flurry of thousands of lawsuits to curtail the process
of trying people, so that eventually they would have to be
simply released. Obviously, bringing them here is going to make
that a whole lot easier.
Senator Brownback. Well, I just would hope you would
consider coming and actually looking at the facility, or
somebody, before, OK, we're shutting this down and we're
sending them to Levinworth is the statement that happens.
Attorney General Mukasey. Senator, I can assure you that
before that ever happens, I will come to Levinworth.
Senator Brownback. Thank you.
A couple of issues I want to raise with you in the time I
have. It has come to my attention that the government is
considering--I only say it's considering, but I just want to
put it on your radar screen--intervening in a case captioned
Knox v. The Palestinian Authority and the PLO to prevent U.S.
citizen plaintiffs from collecting damages awarded to them
against the Palestinian Authority for acts of terrorism.
The only reason I raise that is that some are seeking to
vacate a $174 million judgment, and I had hoped that, if you're
aware of this, that you would let the U.S. citizens be able to
proceed and receive their awards. I don't know that the Agency,
the Department, is looking at this at all. I just wanted to
raise it for your radar screen.
Attorney General Mukasey. I appreciate you raising it.
Senator Brownback. A second issue is, we're going to be
bringing up, I hope, a reauthorization of the Human Trafficking
legislation and we're considering that now. There are some key
issues on new definitions that we'll want to work with you and
your Department on. I think the Department has done a very good
job on a new topic. Senator Biden and I have been working on
this since Senator Wellstone and I originally did this. It's a
very important piece of legislation, from the level of human
trafficking that's taking place globally now. The Department
has been nicely on top of it.
I think as we look at renewing this, I hope we can build on
our successes and not expand definitions to points that we
cannot handle it. I don't know if you had any thought that you
wanted to give us before we move forward with that legislation.
Attorney General Mukasey. I think we have been aggressive
in prosecuting human trafficking cases, and we'll continue to
be.
Senator Brownback. There is a DC gun ban case that's in
front of the Supreme Court. The administration's position on
this has raised some question about it. I'm just curious if you
agree with the position that the Second Amendment protects an
individual right to bear arms.
Attorney General Mukasey. I do.
Senator Brownback. What about, do you view it as a
fundamental right? Because there's been a question raised about
the administration's view of this.
Attorney General Mukasey. The administration's view, as
expressed in its brief, is that this is a right that is subject
to intermediate scrutiny, that the administration's interest
here was in making sure that proper laws that are on the books
to regulate, for example, guns falling into the hands of
felons, are not swept up and excluded here. But the standard is
intermediate scrutiny, it is not simply rational basis. It's an
intermediate scrutiny standard that would allow us to continue
to enforce Federal firearms laws that we have to continue to
enforce, and that was our reason for intervening. That's all in
the brief.
Senator Brownback. I want to ask you as well on your view,
in the time I have left, on the FISA legislation. Some people
are putting forward the idea that we should just substitute the
Federal Government for telecommunications companies. This has
come to be one of the central pieces of the legislation and the
debate, is the immunity for telecommunications companies that
do work with the government at the government's request. Some
are saying, well, let's substitute the government for the
telecommunications companies.
I want to ask you your thought on that particular issue,
but before I do, because I'll probably run out of time on this,
I want to thank you for stepping in to this job at a tough
time. You get a lot of hard questions. I think you handle them
very well. These are uncomfortable topics. They're ones that, a
lot of times, we'd all look at and say, well, I'd rather just
not deal with that and deal with other things. But it's a very
practical world that you're in. I appreciate you, at the end of
the administration last year, of a high-caliber career that you
bring, and knowledge to this. I appreciate you stepping into
the breach for it.
Attorney General Mukasey. Thank you very much.
Senator Brownback. God bless you, and Godspeed in carrying
it on forward the rest of the year.
Attorney General Mukasey. Thank you very much.
On the specific issue of substitution, the conduct of the
companies would continue to be at issue, would continue to be a
subject of dispute, which could do two things: it could open up
their conduct and means and methods to scrutiny, and as well it
could send a signal to them that they can't cooperate in the
future without a court order, they can't cooperate in good
faith.
The over-arching point, I think, to me here, is that this
is a limited immunity in the sense that it's limited. It
doesn't apply, obviously, to companies that didn't participate
and it applies only to companies that participated on the
assurance that what they were doing was lawful and that the
request came from the President. So, those were the only two
categories. But I agree with you that substitution is a bad
idea.
Senator Brownback. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Brownback.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning, Mr. Attorney General.
Attorney General Mukasey. Good morning.
Senator Feinstein. I've been studying your letter, and I
recognize that it is not dispositive on the question of whether
waterboarding is legal or not. You conclude that the
interrogation techniques currently used by the CIA comply with
the law, and waterboarding, you disclose in the next couple of
paragraphs, is not one of them. I believe that is correct.
For the first time, you disclose that, and you also
disclosed the ``defined process'' by which any new method is
proposed for authorization, and the fact that the President
would have to approve of the use of the technique as requested
by the Director and as deemed lawful by the Attorney General.
Was this the case in the past?
Attorney General Mukasey. I believe this has always been
the case.
Senator Feinstein. OK. OK.
Attorney General Mukasey. I mean, I should say, I'm not
authorized to say what happened in the past, but I wasn't
told--
Senator Feinstein. And so you didn't look at this.
Attorney General Mukasey. I was told that this wasn't new.
Beg your pardon?
Senator Feinstein. You didn't look at this, because it is
widely alleged that in the past at least three people were, in
fact, waterboarded. My question is, did the President approve
that?
Attorney General Mukasey. I can't speak to whether people
were, in fact, waterboarded or whether the President approved
of that.
Senator Feinstein. OK. All right. I thought I'd ask--
Attorney General Mukasey. I can't speak to it because I'm
not authorized--
Senator Feinstein. I thought I'd ask--
Attorney General Mukasey. I'm not authorized to discuss it.
Senator Feinstein. I thought I'd ask the question. It's my
understanding now, where we are is that both the Military
Commissions Act and the Detainee Treatment Act really combine
to provide the law for the military that waterboarding is
prohibited. The loophole is the CIA. I the Intelligence
Authorization Conference, I proposed an amendment which would
put the entire government under the protocols of the Army Field
Manual with respect to enhanced interrogation, and that was
accepted by the House, it was accepted by the Senate. It is, in
fact, in both bills.
If it comes to the floor of the Senate and remains in the
bill and assigned by the President, once and for all,
waterboarding will in effect be prohibited throughout the
government. So, I very much hope that is the case. But I
believe that how the enhanced interrogation treatment is
administered, and who administers it, the timing of it, is
really all-important. I would like to ask that you describe the
scenario that you describe in that top paragraph on page 2, how
it would work legally if the interrogation is being carried out
in a foreign territory. If you look at the--I don't mean to--
this is not a trick question. If you look at the--
Attorney General Mukasey. I could hardly say somebody is
posing a trick question if it's something in my letter. I
just--
Senator Feinstein. No. You point out in your letter, the
process would begin with the CIA's determination that the
addition of the technique was required for the program. The
Attorney General would have to determine the use and
lawfulness. Under the conditions and circumstances, the
President would have to approve the use of a technique as
requested by the Director as deemed lawful.
Assume that most of these take place on foreign territory.
How would this work?
Attorney General Mukasey. The same way as is outlined in
this letter.
Senator Feinstein. Now, are you saying that the
interrogator would cable the CIA Director? How would it work?
How would it be carried out legally?
Attorney General Mukasey. The scenario outlined here would
require that the CIA Director become aware, however he becomes
aware, of a technique, describes the circumstances under which
it's to be done, including the safeguards, limits, and as you
put it, length, and so forth. To me, I consult with whoever I
have to consult with and reach a determination, and then it
goes to the President. I--
Senator Feinstein. All right. I'm not trying to--
Attorney General Mukasey. I realize that we--that this
paragraph--
Senator Feinstein. I'm just trying to define a process. I
know how they say it works. I don't know whether that's legal
or not, and that was what I was asking.
Attorney General Mukasey. I recognize that this problem
does not account for, or perhaps consider, a problem with
communication. That's, I guess, my fault because I didn't--
Senator Feinstein. All right. That, I think, is up to us.
Attorney General Mukasey. It's my letter.
Senator Feinstein. Let me ask you one other question along
that line. Is it illegal--is it legal for an interrogation
which employs EITs, Enhanced Interrogation Techniques, to be
carried out by a non- governmental employee?
Attorney General Mukasey. There--well, as you know, there
is what's called--what you've called an Enhanced Interrogation
Technique that authorizes the CIA to--
Senator Feinstein. Right.
Attorney General Mukasey [continuing]. To do those
programs. I don't know whether it includes the right for others
than CIA--people employed by the CIA. Are you talking about
subcontractors?
Senator Feinstein. That's correct. Contractors.
Attorney General Mukasey. The short answer is, I don't
know. I know--
Senator Feinstein. I would like to ask to get an opinion on
that, if I might.
Attorney General Mukasey. I know we prosecuted a contractor
for--as I said, for an offense against a prisoner and he got
a--what may or may not look like a substantial sentence. He got
100 months.
Senator Feinstein. Well, I think it's--I think I would like
to know--as a member of the Intelligence Committee, I'd like to
know whether in fact it is legal to contract out the
interrogation, using enhanced techniques, to a contractor. OK.
Thank you.
Let me move on. You received a letter from Special Counsel
Scott Block stating that his investigations of possible legal
violations in the U.S. Attorney filings and of alleged
politicization of hiring at DOJ is being impeded by the
Department of Justice. That letter is dated January 25th. I
have read the letter. Can you give us some clarity on why the
Department has not responded to the Special Counsel? He
essentially says he is being stiffed, not responded to. It's a
rather lengthy letter.
Attorney General Mukasey. I think it ought to be clear,
first of all, that there are investigations going on by OPR and
OIG into the subjects you refer to. But as I understand it, a
response is in the works with respect to Mr. Block's letter,
and I'm sorry it hasn't gone out. But his letter, you're right,
has been received. And you're right, it's a lengthy letter.
Senator Feinstein. I mean, ``After receiving no cooperation
for 4 months, we received a letter from Steven Bradbury. Mr.
Bradbury reiterates the request that we step down.'' So I
assume there is some conflict with the Special Counsel on this.
Attorney General Mukasey. I think it should be clear that
Mr. Block is in an office that is not within the Department, I
believe.
Senator Feinstein. Well, this outlines a whole litany of
refusals to cooperate in the investigation the Special Counsel
is trying to carry out with respect to the firing of U.S.
Attorneys, which this committee spent a good deal of timing
looking into last year, as you well know.
Attorney General Mukasey. I will see to it that he gets a
response.
Senator Feinstein. All right. And would you make a copy of
that available to this committee, please? Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
We'll take a short break at this point.
Senator Kyl. Mr. Chairman, I can be real brief.
Chairman Leahy. Then we'll go to Senator Kyl. The witness
has asked for a short break.
Senator Kyl. If the witness needs a break, you bet.
Attorney General Mukasey. Thank you, Mr. Chairman.
[Whereupon, at 11:51 a.m. the hearing was recessed.]
AFTER RECESS [12 p.m.]
Chairman Leahy. The committee will be in order. Senator
Kyl, as I indicated before, you're next.
Senator Kyl. Thank you, Mr. Chairman. Thank you, General
Mukasey.
Mr. Chairman, first let me ask, on behalf of Senator
Sessions and myself, unanimous consent to submit opening
statements for the record.
Chairman Leahy. Without objection. And without objection,
anybody who wishes to have an opening statement, the record
will stay open for that purpose.
[The prepared statements of Senator Sessions and Senator
Kyl appear as a submission for the record.]
Chairman Leahy. Senator Kyl.
Senator Kyl. Second, General Mukasey, I specifically want
to commend you for the letter that you sent on January 29th. It
is, I think, a demonstration of good faith that you communicate
in that fashion to the committee. I appreciate it. I'm sure the
rest of the committee does as well. And also for the contents
of it. There's an old saying that for every complex problem
there's a simple and wrong solution. It's always good to be
reminded of how complex and difficult sometimes these issues
are, particularly when they are, or can be, fact-specific. It's
very difficult in those situations then to render generalized
opinions.
Third, we have an oversight responsibility for your
Department. We also have some other responsibilities, including
acting on nominations to fill slots that are vacant. I can find
out what those all are, but it might be useful if you could
simply send up to the committee a list of all the vacant slots
that this committee needs to act on so that we'll know
specifically the task ahead of us so that we can act as quickly
as possible to get those slots filled.
Fourth, as Senator Sessions talked to you about Operation
Streamline, you were in Arizona, and I can confirm what I'm
told by Department of Homeland Security and Border Patrol too,
that there is a great deterrent effect for people that
otherwise would cross the border illegally, knowing that if
they're apprehended they're going to be put in jail for about
60 days. For the 10 to 15 percent who are criminals who come
across, obviously it's potentially going to be a lot more than
that. But for those who simply come across to work, they can't
afford 60 days in jail.
My understanding is the same as you testified, that there
is a significant deterrent effect, that apprehensions are down
significantly in the Yuma sector, which is also, I suspect, due
to the fact that there is a great deal of double fencing and
other barriers that have been put in place.
Here is my plea to you, and my question. You noted some
relationship to resources available, and I know that you've
added some prosecutors in the southwest border States, but for
the last couple of years, because there has been such a strong
support for enhanced law enforcement securing of the border and
the like, Congress has been willing to spend, I think the
simple way to put it, is just about anything that's necessary
to get this problem under control. We passed an emergency
spending that wasn't offset of $1.3 billion.
What I would recommend, even though I understand that you
have to submit a budget to OMB and the Director has to be
careful in spending taxpayer money, we need to know what would
be necessary, both in terms of additional detention spaces,
because that's one of the key elements, and second, any
additional prosecutors or other Department of Justice
personnel, or expenses of which you're aware that would need to
be covered in order to extend this program to other areas where
it could be efficacious. I'm wondering if you could respond to
that, and specifically if you could be able to send us that
information in a timely fashion for us to act this spring.
Attorney General Mukasey. I thought I sent up the
information. I did see, in fact, on an Indian reservation, the
dearth of detention space that essentially causes them to have
to decide which criminals they will confine and which they will
simply let roam free. It's a very difficult thing. Bureau of
Prisons has taken, I don't think it's any secret, a big hit.
It's very hard to find space. It's very hard for them. It's
hard for the marshals who have to ferry these people around. So
that is a very difficult problem.
Senator Kyl. And the detention space is, primarily, I
think, a Department of Homeland Security issue. Secretary
Chertoff--I believe this is a rough order of magnitude
correct--had asked us for about 43,000 or 46,000 detention
spaces and that has been provided now. We need to find out
whether that is adequate, or more are needed. But I'm also
aware that there's a limit on the number of prosecutors.
When I was back home this winter, I was accosted by both
State and Federal folks complaining about the increased minimal
levels for prosecution. I may be wrong, but my recollection is,
unless it's 500 pounds of marijuana, the Federal prosecutors
won't even prosecute. The county prosecutors are, of course,
going crazy because they have to pick those cases up. It would
be very helpful to know what resources would be needed to
effectively control this problem, because I have a sense that
today the Congress, unlike a couple of years ago, is willing to
provide those resources if we have good justification for them.
Attorney General Mukasey. I think that 500-pound limit has
been relaxed in particular areas, so to deal with what is a
substantial problem of people running across with just under
and then putting it all together. There's also obviously a
question of how fast and how many cases can move through the
courts. There's a question of judges and defense lawyers, and
so forth.
Senator Kyl. Sure. Mr. Attorney General, I'm very familiar
with that. The whole tale--we've added a lot of Border Patrol.
We've enhanced our ability to apprehend, but all throughout the
rest of the criminal justice system, from the public defenders,
to jail space, judges, clerks, the whole thing, we have a
problem, I understand. We need to know the order of magnitude
of the problem so that we in the Congress can fund that. It
would be helpful to get your take on what would be appropriate
in that regard.
Also, and I've raised this with you before and I'll just
publicly make reference to it, you know of my interest in the
issue of supporting crime victims. It's my understanding that
the Department of Justice, at least one individual, has
announced plans to take $35 million from the Victims of Crime
Act Fund for management and administration. Now, that was a
fund that was supposed to go to support victims. It comes on
top of a $35 million reduction in the VOCA cap, from $590
million to $625 million.
Crime victims are the ones who suffer if this money is
taken out for management. It seems to me that management of the
Department is the subject of another account, so I would ask
your staff to continue to visit with my staff about the best
way to continue to support crime victims, and hopefully not
raiding the VOCA funds for management of the Department.
Attorney General Mukasey. The issue there is not singling
out the Victim Fund for a tax on management, rather that other
funds have, as part of the--as I understand it, as part of the
appropriated money, had to pay a certain proportion of that as
the cost of administering the particular fund. That was not
unusual for other funds. Up until now, there's been enough
money to prevent that general rule from being applied to the
Victim Compensation Fund. Regrettably there wasn't this time
around, but that's not a decision that somebody made to in any
way try to deprive victims or--
Senator Kyl. Well, I appreciate that answer. We do have the
ability to affect funding, and rather than allowing victims to
suffer it would be good to know what additional needs you have
so that we can provide them in terms of appropriation.
Since the red light is on, Mr. Chairman, I had one last
question. Perhaps I'll simply state it and let the witness
respond for the record.
But it has to do with your views on the so-called Media
Shield legislation. I think it would be very useful for the
committee to have the benefit of your views. You indicated in
your confirmation hearing that you would look into that and
share those views with us, and I think it would be important
now for you to do that, and would appreciate that very much.
Chairman Leahy. Yes. If you could submit that, please.
Attorney General Mukasey. I would simply note that I am one
of a number of signatories on a letter relating to that that
include the Director of the CIA, the Secretary of Defense, the
Director of National Intelligence, and a number of other people
involved in the gathering of intelligence, all of whom have
indicated problems with that legislation.
Senator Kyl. Thank you, Mr. Chairman.
Chairman Leahy. And if I could also follow up with Senator
Kyl's request for a list of vacancies. If you could also add to
that the list of vacancies for which there are no nominations
at all. I'm thinking of the Office of Legal Policy and Office
of Justice Programs. There are no nominations. If there are
nominations that have come up here where the paperwork is not
yet complete, like the FBI reports, the list of, I think, 20
U.S. Attorneys, we've received no nomination. Also, Senator
Durbin requested that you might send us a list of letters from
this committee, both Republicans and Democrats, who have not
yet been answered. Thank you.
[The information appears as a submission for the record.]
Chairman Leahy. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Welcome, Mr. Attorney General.
Attorney General Mukasey. Thank you.
Senator Feingold. I'd like to start off by thanking you for
the call on Friday to let me know of the steps you are taking
to end the disparate treatment by the Department of gay,
lesbian, bisexual, and transgendered employees at the
Department. This was very welcome news, and I am heartened by
the fact that you followed through on your commitment to me at
your confirmation hearing, and you did it really quite
promptly. So, I thank you.
Sir, another commitment you made at your hearing was that
you would not be a ``yes man'' for the President, that you
would not hesitate to express disagreements you had with him.
Given what happened during the tenure of your predecessor, many
of us thought this was very important.
Reading through your written testimony for today's hearing,
it struck me that on just about every issue you discuss, from
FISA to the Media Shield law to the McNulty memorandum, you
embrace the President's or previous DOJ positions, apparently
without reservation. I was hoping to see a little more evidence
of independent judgment, but perhaps we're going to see that in
the future.
You said today that one of the reasons you do not want to
say whether waterboarding is torture is because that would tip
off our enemies as to ``how this country applies its laws''.
Those were your words. But every time we prosecute a crime in
this country we tip off people as to how we apply our laws. We
have a system of public laws and public prosecutions in the
United States of America.
Your statement suggests that you would be unwilling to
enforce the laws against torture by prosecuting a government
official who is suspected of violating those laws. I'd like to
give you a chance to explain whether you'd be willing to
prosecute such crimes, and if so, how you would reconcile that
with your statement that we shouldn't let our enemies know how
we apply the law.
Attorney General Mukasey. I don't see the inconsistency
because the CIA program is one that requires an elaborate
process of authorization to determine that what goes on is not
unlawful, and how that decision gets made is different from
saying that because we prosecute crimes every day, we are
thereby tipping off criminals. We are dealing with two separate
phenomena. I have said already, and I'll repeat, that we did
prosecute actually a subcontractor, an employee of the CIA, for
abusing a prisoner. There was no hesitation there.
I don't think that the measure of the degree to which I
simply follow the law should necessarily be the degree to which
my positions may differ from positions that have been adopted
by the administration. I go to work every day, I follow the
law, I do my best, I go home, I go to sleep, and I do it again
the next day. That's my idea of the job.
Senator Feingold. But how do you prosecute in a situation
like this without tipping off the enemy?
Attorney General Mukasey. I'm sorry. A situation like
which?
Senator Feingold. In the scenario I've presented. How do
you avoid that if you prosecute?
Attorney General Mukasey. If somebody is guilty of
violating the laws of the United States, then they get
prosecuted. That is different from talking about the
circumstances in which a particular interrogation technique
might or might not violate those laws.
Senator Feingold. Let me move on. In the letter you sent to
us last night you indicated that you believe the current CIA
interrogation program is legal. As a member of the Intelligence
Committee who has been briefed on the program, I disagree. But
what Congress needs to know, and what I've asked you for in the
letter I sent to you on December 10th, is your reasoning and
analysis. When will you come to Congress, presumably in a
classified setting, and explain your view of the legality of
the details of the program, interrogation technique by
interrogation technique?
Attorney General Mukasey. Those letters are classified.
They remain classified. I don't--what I undertook to do, was to
review the letters which do, in fact, analyze the techniques
and to see whether they comply with the law. I think what
you've asked me to do is to go and do something different from
what's in the letters and I don't see--and I will not do that.
Senator Feingold. You won't come to Congress and explain
your view of the legality of the details of the program?
Attorney General Mukasey. The view that I have of the
details of the program is embodied in classified letters, which
I have reviewed and found to comply with the law. They explain
it. They explain it far beyond my ability to do it in an off-
the-cuff--not off-the-cuff, but in a session with Congress
where I'm not sitting with the authorities in hand and with the
people at hand to do that review, which has been done in those
letters.
Senator Feingold. Well, this seems somewhat unacceptable.
At your confirmation hearing you promised to let Congress know
your views of the program, and to me that means explaining
those views. And I'm glad you corrected yourself that we're not
talking about an off-the-cuff setting, we're talking about a
classified setting where, obviously, you could have the people
that you need to have with you and the resources. It is
important for us to be able to do more than have just a one-way
conversation about this. We need to have an opportunity to talk
to you about it and ask you some questions about it, so I'd
urge you to reconsider.
In your written testimony, you said granting retroactive
immunity to telephone companies who may have cooperated with an
illegal government surveillance program was necessary to
encourage the companies' cooperation in the future. I assume
you agree that we don't want to encourage telephone companies--
or anyone else, for that matter--to break the law, correct?
Attorney General Mukasey. That's correct.
Senator Feingold. Is that correct?
Attorney General Mukasey. That's correct.
Senator Feingold. So let's take a hypothetical situation in
which cooperating with a government request for assistance
would constitute a clear violation of the law. That is not the
kind of thing we want to encourage, is it?
Attorney General Mukasey. We don't want to encourage
anybody to violate the law and that covers helping, say, a
policeman rob a bank.
Senator Feingold. OK. Well, as you know, FISA prohibits
companies from complying with requests from the government to
conduct electronic surveillance that are not accompanied by a
court order or a proper certification. Specifically, under
Section 2511 of Title 18, telephone companies may cooperate
with a government request for assistance only if the company
receives either a court order or a certification from the
Attorney General or another high-level government official
stating ``that no warrant or court order is required by law,
that all statutory requirements have been met, and that the
specified assistance is required.''
Now, that law has been on the books for 30 years. It hasn't
been repealed or modified during that period, isn't that
correct?
Attorney General Mukasey. That law remains on the books.
Senator Feingold. Should the telephone companies be
expected to comply with this law?
Attorney General Mukasey. The telephone companies have been
compliant with the law. We are now in a regime in which all of
this is brought under the Foreign Intelligence Surveillance
Court, and that's where we are now.
Senator Feingold. Mr. Chairman, I know I'm over my time. I
apologize. Thank you.
Thank you, Mr. Attorney General.
Chairman Leahy. That's quite all right.
Then just so people will understand the schedule, we will
next hear from Senator Hatch, then Senator Durbin, then we will
break until approximately 2.
Senator Hatch.
Senator Hatch. Thank you, Mr. Chairman.
General Mukasey, I think you've done your best to work with
the legislative branch, while at the same time preserving the
interests of the executive branch here today and in the past.
It's not easy and it can really be frustrating, but I for one
believe that not only are you sincere, but you're doing your
best.
I read the letter you sent yesterday regarding the issue of
interrogation techniques. And as you did in your confirmation
hearing, you approached this issue thoughtfully and fairly. You
have made an effort to be as forthcoming and cooperative as you
can. You drew the line in your letter between real situations
on the one hand, and facts and hypothetical speculation on the
other.
You wrote in your letter that this area involves
``application of generally-worded legal provisions to complex
factual situations in an area of the highest national
interest.'' That is not an area in which speculation,
hypothetical scenarios, and abstract questions are appropriate.
In fact, even the Washington Post this morning called this a
``lawyerly response''. But you are, of course, the Nation's top
lawyer, and this is a legal question. I believe that you've
drawn an obviously fair and legitimate line, and I respect it.
So having said that, let me just ask a few questions that I
think need to be asked. Your prepared statement addressed
several high-priority legislative issues. FISA reform tops the
list. I think both you and I feel that, and hopefully everybody
else. It was probably the most important piece of legislation
that we will consider in the 110th Congress.
The Protect America Act expires this Friday. Last night, we
passed only a 15-day extension. Now, I agree with you that
stopping terrorists requires knowing their intentions, which
requires intercepting their communications. Your testimony
discusses the Department's grave concerns with legislation
which takes what you call a short-term approach to modernizing
FISA. That is what a sunset provision on FISA would be, a
short-term and intermittent approach to national security.
Stopping and starting, changing authorities and
restrictions and policies--I don't think that's the way to
proceed or to protect our country. That's why I'm strongly
opposed to sunsets in this area. We didn't have any in the 1978
Act and it's worked, more or less, until we got to these
particularly high-tech problems of today. FISA, the Foreign
Intelligence Surveillance Act, itself had no sunset, as I
mentioned.
Nearly every one of these laws that have amended FISA had
no sunset. Now, does Department of Justice believe that the
current FISA Modernization Act should include a sunset?
Attorney General Mukasey. It does not.
Senator Hatch. OK. Regarding the proposal of some of my
very sincere colleagues here to substitute the government in
the place of the telecoms, answer me this: would that allow
third-party discovery?
Attorney General Mukasey. Yes.
Senator Hatch. Interrogatories?
Attorney General Mukasey. Yes. The whole--I mean--
Senator Hatch. Classified document requests?
Attorney General Mukasey. Precisely.
Senator Hatch. Trade secrets?
Attorney General Mukasey. Yes.
Senator Hatch. These would all become public?
Attorney General Mukasey. Yes.
Senator Hatch. Well--
Attorney General Mukasey. And that's what I meant by saying
we would still be litigating the conduct of the companies, and
all of these confidential matters, plus the costs imposed on
the companies of meeting those requests, would continue to be
there regardless of who a substituted party was.
Senator Hatch. Wouldn't any verdict in the case reveal
whether the government had a specific relationship with a
specific telecom?
Attorney General Mukasey. It would have to.
Senator Hatch. Yes. Isn't all that information highly
classified?
Attorney General Mukasey. It is. And it would all be--
Senator Hatch. The basis for classification is to protect
the information from getting in the hands of the wrong people,
right?
Attorney General Mukasey. It would all--that's right. And
it would all be betrayed by the continuation of the litigation.
Senator Hatch. In this case, terrorists. In this case, in
the hands of terrorists.
Attorney General Mukasey. Right.
Senator Hatch. And others, too. I mean, there are other
people who would do our country in.
Now, I have a copy of a recent letter from the Director of
National Intelligence, Admiral Mike McConnell, to Senator Kit
Vaughn. The letter contains unclassified examples of extremely
important information the Intelligence Committee has gathered
under the Protect America Act. Some of the information related
to efforts by terrorists to obtain guns and ammunition,
movements of key extremists to avoid arrest, information on
terrorist money transfers, and just to mention one other,
efforts of an individual to become a suicide operative. Now,
these are just a few of the many successes that were listed,
yet some say that the Act does not protect Americans overseas.
They infer that the government could be targeting American
families on overseas vacations, and even our military members
defending our country.
Are you aware of any instances whatsoever in which an
intelligence analyst utilized authority provided from the
Protect America Act to target innocent Americans overseas?
Attorney General Mukasey. No, I am not.
Senator Hatch. Now, the topic of reverse targeting has been
mentioned often during the FISA reform debate and it refers to
targeting a foreign person with the real intention to target a
U.S. citizen or a U.S. person, thus circumventing the need for
a warrant. From an intelligence perspective, reverse targeting
makes no sense. From an efficiency standpoint, if the
government was interested in targeting an American, it would
apply for a warrant to listen to all of that person's
conversations, wouldn't it?
Attorney General Mukasey. I should think.
Senator Hatch. Not just his conversations with terrorists
overseas.
Attorney General Mukasey. Correct.
Senator Hatch. OK. Now, I asked Attorney General Weinstein
about this during a Judiciary Committee hearing last October
and he reiterated the government's view that FISA itself makes
reverse targeting illegal. Does the DOJ still consider reverse
targeting under FISA?
Attorney General Mukasey. Absolutely.
Senator Hatch. Are you aware of any instances of
intelligence analysts utilizing reverse targeting?
Attorney General Mukasey. I am not aware of any such
instances.
Senator Hatch. One last question, because my time is
running rapidly.
Our national security is greatly dependent on the
cooperation of telecom providers. We cannot protect America
against terrorist threats alone. They are essential to the
process. From a law enforcement perspective, can you elaborate
on our government's dependence on the voluntary cooperation of
telecom providers? And without getting into any classified
information, has the Department of Justice seen a change in the
willingness of the private sector to voluntarily assist the
government?
I might add, if I was general counsel of one of these
companies that was going to be subject to civil lawsuits that
could disclose all kinds of other things, ruin them in the
stock market, and create a whole bunch of other problems,
including danger to their employees overseas, just to mention a
few, I wouldn't be very cooperative.
Attorney General Mukasey. The short answer to your last
question is, have we gotten push-back, yes. The over-arching
point to be made here is, this is a war unlike any other that
we've ever been involved in.
Senator Hatch. You've got that right.
Attorney General Mukasey. The others have all involved
particular countries and particular places where we could go
bomb and destroy their infrastructure, and so on. These folks
live in and among civilian populations. They target civilian
populations. They use all of the techniques of the 21st
century. There is only one weapon that we have to defend
ourselves, and that is intelligence.
Senator Hatch. Thank you, Mr. Chairman.
And thank you, General. We appreciate the candor that you
have.
Chairman Leahy. Senator Durbin.
Senator Durbin. Mr. Attorney General, thank you for being
here. When I first met you in my office, I asked you if you
would tell me who your heroes were, and you told me that you
keep a picture of George Orwell on your office wall because of
his essay, ``Politics and the English Language'', which I had
not read. I got a copy and read it. It's dense. It's profound.
I find it difficult to understand, but I respect you for
looking at it carefully and admiring his thought process.
In that essay, Mr. Orwell is critical of misleading
political speech and says, ``As soon as certain topics are
raised, the concrete melts into the abstract.'' I would say,
Mr. Attorney General, on the subject of waterboarding, that
some of your words have melted into the abstract. The last time
that we met here was in a similar circumstance, with the room
half empty, and I asked a question which continues to be asked
to this day about waterboarding. I am still troubled as I
listen to your answers. Let me try to be specific and ask you
three specific questions.
The first, is this. You say in your letter to the
committee, ``reasonable people can disagree'' in reference to
waterboarding. So could you tell me who those reasonable people
might be who disagree? Can you cite any court cases, legal
scholars and others? You refer to them as ``people of equal
intelligence, good faith, and vehemence,'' I believe. So I'd
like to know who you're going to cite as the reasonable people
who disagree that waterboarding is not torture.
The second thing I'd like to ask you, when you replied to
Senator Biden, you suggested that waterboarding under certain
circumstances would not shock the conscience. I think the
reference was made to nuclear weapons, and discovering nuclear
weapons. If that is the case, can you explain to me why our
government has now discontinued and prohibited this form of
interrogation if there are circumstances which, in your mind,
could justify it?
The third question. You said that your lack, or your
refusal, or your unwillingness to take an unequivocal position
on torture couldn't jeopardize anyone because our troops all
wear uniforms, and so they're protected against torture under
existing conventions and statutes. But certainly there are
American personnel, special forces, CIA agents, employees of
the State Department, who could be in jeopardy or in danger,
who don't wear uniforms, if there is uncertainty about the U.S.
position on the issue of waterboarding.
Attorney General Mukasey. With respect to your first
question you asked, who are the reasonable people who have
disagreed about whether waterboarding is torture, there have
been people in this chamber who have disputed whether under
certain circumstances it wouldn't be legal for the President to
engage in techniques described by at least one of them as
torture, but then pulled back in order to obtain information to
save American lives. Those are matters of record.
Senator Durbin. Mr. Attorney General, this body in this
chamber, if you refer to the Senate--
Attorney General Mukasey. I'm referring to the Senate.
Senator Durbin [continuing]. Has voted clearly, on a
bipartisan, overwhelming vote, that we would prohibit such
practices with the McCain amendment. So if you're going to rely
on the chamber, the chamber has expressed its will in exactly
the opposite position you've taken.
Attorney General Mukasey. And the chamber, on another
occasion, declined, voted down a bill that would forbid
waterboarding. And there were people in the course of the
debate on the measure that you mentioned who said that the
language was so general that it would open things up to all
sorts of behavior that they considered objectionable and cruel,
which I would think would include waterboarding, because there
are people who say that.
Senator Durbin. If the Detainee Treatment Act, I think, is
clear in terms of the law of the land and the expression of
this chamber, and even went so far as to offer amnesty,
immunity to employees of the government who have been engaged
in it, do you still think that the jury is out on whether the
Senate believes that waterboarding is torture?
Attorney General Mukasey. The question is not whether the
Senate is out on this or that technique. The question is
whether the Senate has spoken clearly enough in the legislation
that it has passed, and that the Congress and the law has
passed, and that the President has signed, which is all anybody
has really got to work with.
Senator Durbin. So where is the lack of clarity in the
McCain legislation?
Attorney General Mukasey. The words of the legislation, of
all the legislation that's thus far been passed, are words that
are general and upon which, as I said, people on both sides of
the debate have already disagreed. To point to this language or
that language, it seems to me is to pick nits at this point.
People have disagreed about the generality of the language and
have said that it can be read two ways.
Senator Durbin. I might just say, as the Chairman has noted
here as a matter of record, Senators McCain, Warner, and
Graham, the lead sponsors of this legislation, have said that
under the Military Commission Act, waterboarding is a war
crime. It is unequivocal. At this moment in time, you have
employees of your Department in Iraq, counseling the police and
army there not to use waterboarding and torture.
In their standard, unfortunately, at least leading up to
this moment, has been that it depends on the circumstances. Do
you see the problem with your ambivalence on this issue when it
comes to setting a standard that we are trying to teach to the
world, a standard we want our own people to be protected by?
Attorney General Mukasey. The standards--the problems posed
by what you call ``ambivalence'', which I don't think is really
ambivalence but rather a due caution for the reasons that I
outlined, are already matters of record. I want to answer the
second question because it suggests that I said I would--
Senator Durbin. It's in the Biden question.
Attorney General Mukasey. I'm sorry?
Senator Durbin. It was on Senator Biden's question. Is that
it?
Attorney General Mukasey. No. It was your second question,
which regrettably, my notes aren't--
Senator Durbin. The two other questions related to Senator
Biden's question about shocking conscience.
Attorney General Mukasey. That I said that waterboarding
would not shock the conscience. What I described was a
situation in which it would shock the conscience. And so far as
it being a relative standard, that was something that was put
in place by the person who wrote the decision in which that
first appears, so that wasn't something that I put there.
Senator Durbin. So for clarity then, I assumed--and correct
me, please--that you were arguing that the use of such
techniques to discover nuclear weapons would not shock the
conscience.
Attorney General Mukasey. No. What I was saying was that
the use of such techniques to discover information that could
not be used to save lives and was simply of historical value
would shock the conscience.
Senator Durbin. Well, that's half the answer. So let's go
to the other half. What about the circumstances where the
information would save lives, many lives?
Attorney General Mukasey. Those circumstances--
Senator Durbin. Would that justify it?
Attorney General Mukasey. Those circumstances have not been
set out. That is not part of the program. We don't know
concretely what they are, and we don't know how that would
work.
Senator Durbin. Under the military standards, clearly
military interrogation standards, they are not interested in
the danger. They have just said unequivocally that their
personnel cannot engage in this technique. So you're saying
that when it comes to the non-military, that is still
unresolved as to whether they can use these techniques?
Attorney General Mukasey. It is unresolved.
Senator Durbin. In your mind.
Attorney General Mukasey. Because I have not been presented
with a concrete situation. And I would--
Senator Durbin. I've gone over my time and I apologize, Mr.
Chairman.
Thank you, Mr. Attorney General.
Chairman Leahy. Thank you very much.
We will stand in recess until 2. The next Senator on the
Republican side will be Senator Coburn. If he is not here,
Senator Cornyn. On our side, Senators Whitehouse, Schumer, and
Cardin.
We stand in recess.
[Whereupon, at 12:37 p.m. the hearing was recessed.]
AFTER RECESS [2:07 p.m.]
Chairman Leahy. Welcome back. And Mr. Attorney General,
thank you. It is not a lack of interest that you don't have a
larger audience than this. What is happening on the--both
Democratic and Republican leadership in key committees are
trying to work out some of the basics of the stimulus package.
They have got an area where both Democrats and Republicans want
to work closely with the President, not in a partisan way, but
a way for the country to see if there is a stimulus package we
can do.
I just came from a meeting where a number of members of
this committee are at, and I'm sure there are similar meetings
on the Republican side who are trying to do that. We're also
trying to work out some agreements on FISA. We have this 15-day
extension, which is something, again, Republicans and Democrats
worked out. Now we're working out some of the things that would
be in order for votes for any change. I say that as a matter
just to let you know why many on both sides of the aisle are
missing.
Attorney General Mukasey. I understand people have other
things to do.
Chairman Leahy. Well, you probably do, too, but I
appreciate you being here.
Attorney General Mukasey. Not today.
Chairman Leahy. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
General Mukasey, we took advantage of the break to mention
a matter that the Chairman and I had particular concern about,
just to make sure that you are aware of that. But let me now do
that in open session just so everyone knows of the issue.
This has to do with the Open Government Act of 2007 that
Congress passed, and was signed by the President into law in
December. Chairman Leahy and I have been working on FOIA
reform, Freedom of Information Act reform, and a key component
of that legislation creates the Office of Government
Information Services, located within the National Archives and
Records Administration.
I have been concerned, and I know the Chairman has because
I have heard him speak on the floor, about statements made
within the administration about the possibility of moving that
office that was created by that legislation to the Department
of Justice, or perhaps somewhere else. I have reservations
about that.
I wanted to let you know that, and I know the Chairman does
as well. I hope that we can follow up with you after you've had
a chance to look into that in greater depth so we can resolve
that. My opinion is that the legislation forecloses that. I
realize there can be things done through the budgetary process,
but it is a concern and I wanted to alert you to that.
Attorney General Mukasey. I understand that you did, and
I'm grateful for that. I understand that these requests are
often filed by people who are lay people and don't know
precisely what it is they're asking for, or how to ask for it.
So, it's helpful to have a third person in the middle.
Senator Cornyn. As a former judge myself, and as a former
judge yourself, anything that could avoid litigation and
resolve things informally, I think, would be in an expeditious
fashion. I bet you would agree with me that's a good thing.
Attorney General Mukasey. I would. Yes, sir.
Senator Cornyn. Let me also address FISA reform, something
that's very much on Congress' agenda. Our leaders have
announced a 15-day extension, but that, in my view, is kicking
the can down the road and something we should do on a permanent
basis.
Let me just talk about this in very human terms. Yesterday
I talked to the father of Corporal Ryan Collins, who was a
Texan killed in Iraq in May of 2007 during search operations
for several U.S. soldiers who had been kidnapped by al Qaeda.
At a previous hearing held by this committee on reforms to the
Foreign Intelligence Surveillance Act, I detailed the troubling
facts that had been highlighted actually in a New York Post
story on October 15, 2007.
The title of that is: ``Wire Law Failed Lost G.I.'' What
the story details is a 10-hour delay necessitated by a FISA
application in a circumstance that perhaps would not have been
necessary if FISA reform had been passed, in other words,
intercepting a foreign-to-foreign communication.
I just wanted to raise the point that in talking to
Corporal Collins' father, who lives in Vernon, Texas,
yesterday, he expressed concern that if in fact the kind of
FISA reform that we're trying to pass on a permanent basis that
would not require a lengthy and lawyer-intensive application
process when trying to listen to foreign intelligence, that his
son might be here today. So this is something that is not just
hypothetical, it's something very human and very personal, and
I wanted to raise that issue.
But do you continue to see that as a problem that cries out
for resolution? In other words, making sure that we don't have
to go through a laborious FISA application process where,
clearly, you're talking about intercepting foreign
intelligence? Is that a problem that this legislation, you
believe, attempts to resolve?
Attorney General Mukasey. You've put a human face on the
problem we're trying to prevent from recurring. I don't think
anybody believes that it should ever be necessary for any court
to pass on whether we can conduct foreign surveillance for
intelligence purposes, to find things out. We want to make sure
that that's clear. We want to lower the burden on the
government to--in all its presentations to FISA, not to the
point where we don't have a legitimate burden, but just to make
sure that what gets approved, that all that has to get approved
are procedures and that we don't have to go on a case-by-case
basis to get involved in the sort of thing that you describe.
I mean, I believe--I hope--that the Justice Department
acted with all the speed that it could act in that case, but we
never want to be in a situation where, in order to conduct
foreign intelligence, we need to go with a pile of papers to a
courthouse, get a judge to look through them, before we can do
what we think we need to do. That's--
Senator Cornyn. I agree, General Mukasey.
Attorney General Mukasey. That's a human face on the
problem.
Senator Cornyn. Let me just ask you, in the brief time that
I have remaining, I know there's been questions about
interrogation techniques, including waterboarding, and some
allusion to the ticking time bomb scenario. I understand your
hesitancy to express a categorical view on particular
interrogation techniques, because as I understand your
response, under the ``shocks the conscience'' standard, it
really depends on the facts. Would you care to comment on the
latitude that has to be provided within the law to make sure
that we are using every legal means to intercept intelligence
that can perhaps detect and deter terrorist acts?
Attorney General Mukasey. What I understand the case to be
today is that we have in place a program that the Director of
the CIA believes is adequate to what we face. What I have also
said is that, yes, there are circumstances where waterboarding
is clearly unlawful. What I have said is that, simply, there
may be circumstances in which that presents a difficult
question.
I haven't said that there are circumstances in which it's
clearly lawful, and I'm not going to get into any discussion in
the abstract of circumstances in which it might be, because I'm
not going to give anybody the play book, nor am I going to call
into question what people do or have done when it's not
necessary to do so.
Senator Cornyn. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman.
Attorney General Mukasey, referring to your January 29th
letter that we received yesterday, it strikes me that in its
mode of analysis, you have assumed the role, in essence, of
sort of a corporate counsel to the executive branch. The steps
it takes are to assure that there is no lawbreaking currently
going on, but the letter is unwilling to look back, as a
corporate counsel might be unwilling to look back, and dredge
up past unpleasantness and risk potentially creating liability
for the corporation.
I can see the role for that kind of analysis in a corporate
context, but it strikes me that you are not just the corporate
counsel to the executive branch, you are also a prosecutor. You
are the top law enforcement officer of the United States.
Prosecutors do look back. Prosecutors do investigate things
that have happened in the past. They do dredge up the past in
order to do justice.
You know, it's the mission statement of the Department of
Justice to seek just punishment for those guilty of unlawful
behavior. The famous decision of Berger v. United States
emphasizes the duty of the U.S. Government, a sovereignty whose
interest is that justice shall be done. It is as much your duty
to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one. The President has said that we will
investigate and prosecute all acts of torture. You just said
today, if someone is guilty of violating the laws of the United
States, they get prosecuted.
If you look at the United States Code, 18 United States
Code, Section 2340(a) on torture: ``Whoever outside the United
States commits, or attempts to commit, torture shall be fined
under this title or imprisoned not more than 20 years, or both,
and if death results to any person from conduct prohibited by
this subsection shall be punished by death or imprisoned for
any term of years, or for life. There is jurisdiction over the
activity prohibited if the alleged offender is a national of
the United States, and a person who conspires to commit an
offense under this section is subject to the same penalties,
other than the penalty of death, as the penalties prescribed
for the offense.''
So we have a statute on point. You are, I believe, the sole
prosecuting authority for that statute, correct?
Attorney General Mukasey. I am at the top of--
Senator Whitehouse. The Department of Justice is.
Attorney General Mukasey [continuing]. The Department of
Justice, which is the sole prosecuting authority.
Senator Whitehouse. In reference to your letter and in your
prosecutor's responsibility, not your advisory--you have two
hats. You advise the administration. You're sort of the
corporate lawyer to the administration. You're also a
prosecutor. In the prosecutor's hat, could you tell me in what
way, looking back, is there an absence of concrete facts and
circumstances about waterboarding to even look at whether this
statute should apply? Where is the absence of concrete facts
and circumstances in the events of the past?
Attorney General Mukasey. First, let's talk about how many
hats I wear. I wear one hat. It's as Attorney General of the
United States. There are a number of duties under that, but as
far as I'm concerned there is no divided responsibility or
divided loyalty. There is one responsibility.
Senator Whitehouse. All right. Well, let's talk about the
two duties, in the terms of one providing advice to the
administration in the same way that a corporate counsel--
Attorney General Mukasey. When it comes--
Senator Whitehouse [continuing]. Provides advice to a
corporate--
Attorney General Mukasey. When it comes--
Senator Whitehouse [continuing]. And being an independent
prosecutor whose job is to look at the criminal laws and
enforce them.
Attorney General Mukasey. When it comes to past conduct,
one of the many questions involved in past conduct, in addition
to what was done, is what authorizations were given, what
authorizations were reasonably relied on? My current evaluation
of the statute, if there is one, has only tangentially to do
with that, because if it has directly to do with that, then the
message is, your authorization--you who did whatever you did,
your authorization is good only for so long as the tenure of
the person who gave it, and maybe not even for that long. It's
good as long as it's current, as long as it's within the limits
that are recognized in the debate that's currently going on, as
long as the political winds don't start to blow in the other
direction. That's a--
Senator Whitehouse. So otherwise, as long as--
Attorney General Mukasey. That's a message that I'm not
going to send.
Senator Whitehouse. The message you send otherwise is that
``I was only following orders'' is a fine response.
Attorney General Mukasey. It's not a fine response. It was
a response at Nuremberg that was found unlawful, as we both
know.
Senator Whitehouse. And yet it's the one that you're
crediting right now. I had authorization and therefore I'm
immune from prosecution. Isn't that where that analysis leads,
inductively?
Attorney General Mukasey. No. It's, I had authorization and
let's take a look at the authorization and the circumstances
under which it was given and what was done, and a whole wide
range of variables that I don't have before me.
Senator Whitehouse. Has that been done? Has there been a
thorough, independent analysis under your administration of
whether or not any national of the United States is potentially
in violation of Section 2340(a) as a result of--
Attorney General Mukasey. I don't start investigations out
of curiosity, I start investigations out of some indication
that somebody might have had an improper authorization. I have
no such indication now.
Senator Whitehouse. Well, it just strikes me as odd that
where the question of whether the taping--the destruction of
the taping of an interrogation was a criminal act is at issue.
There we have a council geared up to look at that question and
make a solid determination whether or not laws were violated,
but whether the underlying interrogation was itself a criminal
act is not entitled to examination or investigation. Isn't that
worth at least examination or investigation?
Attorney General Mukasey. I don't know that that's what
I've said. The way that started was, we were told that there
was a destruction and a preliminary inquiry was made. When that
preliminary inquiry showed some reason--some reason--to believe
that some statute may have been violated, which is a very low
standard, it's well below probable cause, when that was met,
that low bar, we were required to, and did, begin a criminal
investigation.
Senator Whitehouse. Shouldn't that apply? There is evidence
that there was an interrogation in this case. There is a
statute on point that could very well be applied. If the bar is
low, isn't it worth taking a look at? Who is taking a look at
this?
Attorney General Mukasey. You've alighted one point when
you say that there was evidence that there was an
interrogation. Evidence of an interrogation and evidence of a
crime are two different things.
Senator Whitehouse. Well, the way you said it was there was
evidence of a destruction. The destruction could or could not
be a crime, depending on how facts apply to law. The
interrogation could or could not be a crime, depending on how
facts apply to law. There really isn't a principal distinction
between these two.
Attorney General Mukasey. I think there's a principal
distinction when the head of the CIA tells you that somebody
destroyed tapes, apparently without proper authorization, which
is what he disclosed.
Senator Whitehouse. And so I don't see how that gets you
anywhere. I don't see how that--
Attorney General Mukasey. And all that started--all that
started was a preliminary inquiry, and the preliminary inquiry
showed the possibility that a crime was committed, and then we
started an investigation.
Senator Whitehouse. I don't see how that resolves the
Nuremberg defense problem. If the reason that you're giving us
for investigating the destruction of the tapes, but not
investigating the underlying interrogation, is that it appears
that the interrogators were following orders and it appears
that the destroyers were not, isn't that the Nuremberg defense?
Attorney General Mukasey. No, because you're assuming what
was on the tapes. You're assuming that the interrogation was
unlawful.
Senator Whitehouse. I'm not assuming any such thing, any
more than you'd be assuming that the destruction was unlawful.
What I'm suggesting is that you should investigate it and there
should be at least somebody who at least takes a look at this
in a principled, thoughtful way. If the answer that comes back
is, no, there was not a crime and here's why, then we can lay
the question to rest. But if what you're telling me is that
this hasn't even been investigated, although the destruction of
the tapes is being investigated, it strikes me that there is a
split standard there and I'm trying to understand why.
Attorney General Mukasey. It seems to me that, since there
was an ongoing investigation into the destruction of the tapes,
that may well disclose what was on them and it may also well
disclose whether there's anything further to be investigated. I
think we ought to await that.
Chairman Leahy. The--
Senator Whitehouse. The theory--have I used my time?
Chairman Leahy. You have.
Senator Whitehouse. I apologize. I will desist.
Chairman Leahy. That was a question I had earlier this
morning. You'll have time to go into it further.
Senator Schumer?
Senator Whitehouse. I apologize to the Chairman.
Senator Schumer. Thank you, Mr. Chairman.
And Judge Mukasey, I want to welcome you to your first
oversight hearing as Attorney General. In many ways, both good
and bad, you are the type of Attorney General I expected you to
be when I voted for your confirmation. On the good side, you
have acted decisively in several ways to clean up some of the
stench of politics and ideology at the Department of Justice.
You allowed an OPR investigation to continue that had stalled
under Attorney General Gonzales. As Senator Kennedy noted, you
launched a full-blown investigation into the CIA tapes with a
good prosecutor. You reinstituted rules limiting contacts
between the White House and the Justice Department. You
recalled a much-criticized U.S. Attorney in Minnesota to
Washington. You made good on your promise to Senator Feingold
to address the question of equal access to DOJ facilities by
gay and lesbian groups, and it seems in many ways there has at
least been a beginning of the return of morale at the
Department. So, on issues where I expected you would be a good
Attorney General, you have largely been.
On other issues, however, especially related to executive
power and torture, I never expected your views to be mine, and
in fact they differ dramatically from mine and those of many of
the members of this committee, many experts, and the majority
of the American people. Nonetheless, I thought there was a
hope--not large--that you just might rise to the occasion. So,
I'm not surprised with your testimony, but I do remain
disappointed.
I'd like to talk to you about that issue, the issue of
waterboarding. Now you've had a chance to further educate
yourself about coercive methods of interrogation. Having done
that, do you still find the method of waterboarding described
in our October letter repugnant, as you stated in the letter
back to us?
Attorney General Mukasey. As a personal matter?
Senator Schumer. Yes.
Attorney General Mukasey. Yes.
Senator Schumer. That's how you stated it.
Attorney General Mukasey. Yes, I do.
Senator Schumer. Yes. OK.
Now, separate from the pure legal question, which is what
we've talked about mostly here today, given that the method is
repugnant to you, do you support a ban on waterboarding,
whether by statute or executive order?
As you know, there is such a statute that Senator
Feinstein--I was a co-sponsor of it--has in the--was very good
at putting in the intelligence authorization. I think it's now
in the Intelligence conference, so it's going to come close. So
do you support--let me repeat that. This is not asking the
legality. Do you support a ban on waterboarding, whether by
statute or executive order?
Attorney General Mukasey. There are two parts to that. One
part, as a general matter, as a matter of principal, I don't--
and I try to avoid--I tried it when I was a judge, I try it--I
try to do it now. I try to avoid using the blank canvas of
either existing laws or proposed laws on which to paint my own
moral tastes and my own beliefs as to whether something is
repugnant or not.
Passing that, the question of whether waterboarding should
be outlawed or shouldn't be outlawed is a question on which
other people own a substantial part of the answer, notably the
people involved in gathering intelligence, using intelligence,
processing intelligence, explaining our position abroad--that
is, the State Department, which does, by the way, a superb job
of it--all of those people have to be heard.
Senator Schumer. Judge, we know that.
Attorney General Mukasey. OK. One of the things, though,
that I would want to do before expressing my own view as the
junior member of the entire assemblage I've just named, is hear
them.
Senator Schumer. OK. I really--that is not up to your usual
standard of answer here. I didn't ask you--I know you'd want to
hear from a whole lot of people and stuff, but you've already
stated something to be repugnant. I'm asking you, one of your
roles as Attorney General is not simply a decider of what's
legal or not legal--that's your most important function--but
it's an advisor on policy.
Now, I find it hard to understand how you personally, when
asked for advice, would not be able to say that something
that's repugnant should be outlawed. I mean, I'm asking you the
hypothetical not of what existed 3 years ago and not what even
exists today. You've stated what exists today. I'm asking you,
there's a statute. It's not an irrelevant question.
You're likely to be asked the question if you haven't been
already. There's a statute that is likely--very likely--to get
to the President's desk, and I'm just asking you, in terms of
the advice you would give the President, your own personal
view, whether by statute or executive order, should
waterboarding be outlawed, period. You said it's repugnant. I
don't understand how you can now say, well, I have to ask a
whole lot of other people. I'm asking you your view.
Attorney General Mukasey. Senator, I don't want to
trivialize the question and so I'm going to refrain from
telling you all the other things that I find repugnant. But
suffice it to say that whether something is or isn't repugnant
to me, taken by itself, isn't the basis for my recommendation
about whether it ought to be outlawed. I want to hear from
other people. I want to hear other views. I want to analyze it
as a policy matter. I want to be able to imagine, if I can, all
of the facts and circumstances in which the question might
arise--
Senator Schumer. Now, when you have the--
Attorney General Mukasey [continuing]. With the assistance
of the people, the talented people that I have at the Justice
Department.
Senator Schumer. When you had the discussion, I think, with
Senator Biden, then Senator Durbin, you were talking about a
standard and you'd have to see the fact situation meet the
standard. You didn't say that to us. You didn't say
waterboarding is sometimes repugnant, or might be in certain
circumstances repugnant. You said it's repugnant. You didn't
have any qualifiers. And--
Attorney General Mukasey. The qualifier was to me, yes.
That's a big qualifier.
Senator Schumer. So I just find it--you have an opportunity
here to be something of a leader, I guess. And you are going to
be asked whether we should pass a law. This does not get into
the conundrum of what to do about the past, which I know you
wrestle with. But we have an opportunity not to simply say at
this time there won't be waterboarding, but it's the policy. We
all know that the military has made it its policy.
We all know that, you know, there are all kinds of experts
in the same sort of--in a more difficult situation than you on
the battlefield who say it should be outlawed. You find it
repugnant, and yet you can't say that it's your view there
ought to be a law to outlaw it? That doesn't put into jeopardy
any of the people you are supervising, I guess, in a broader
sense.
Attorney General Mukasey. When I was a judge, I was not a
settling judge because to me it posed the danger of taking the
authority of my office and putting my personal tastes into it
and putting my thumb on the scale one way or the other. I'm now
the Attorney General, and for me to take my personal reaction
to something and put the authority of that office on the scale,
when I haven't heard all of the things I've told you I think I
have to hear, is to me just as big a mistake, for a lot of the
same reasons.
Senator Schumer. I have to tell you how profoundly, in this
particular situation, I disagree with you.
Attorney General Mukasey. I'm happy to hear that I lived up
to expectations. I'm very sorry to hear that I lived down to
them.
Senator Schumer. Well, thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Attorney General Mukasey, there had been some comments in
the media about Acting Assistant Attorney General Steve
Bradbury, with questions being apparently raised by some about
his renomination, and I just wanted to take this occasion to
give you my endorsement of Mr. Bradbury.
I've had considerable dealings with him in his capacity. I
worked with him very closely 2 years ago on the issue of
legislation to bring the Terrorist Surveillance Program under
the Foreign Intelligence Surveillance Court and found him to be
an excellent lawyer. I worked with him on a number of the top
secret matters on very involved legal issues, and I think he's
a first-rate lawyer. I hope he will be confirmed by the Senate,
but in any event, my strong recommendation is to see him
retained in the Department of Justice.
Moving on, I wrote to you by letter dated November 13, 2007
inquiring about two of the matters discussed at the
confirmation hearing. One is on the Reporter's Shield, and the
second on the McNulty memo on attorney/client privilege. It
would be my hope that we could move forward to get whatever
positions you have here, because we're going to be moving
forward, I think, fairly promptly on legislation on the
attorney/client privilege, and on Reporter's Shield as well.
On the issue of Reporter's Shield, it passed the House
398:21, reported out of committee 15:4, so I think there is
very strong support in the Congress. The House number is well
in excess of two-thirds, and the majority in the Senate
committee is in excess of two-thirds, regardless of the
President's view on the subject.
There had been a citation that there were only 24 subpoenas
issued as to reporters, and in a letter from the Department of
Justice to Senator Grassley dated November 28, 2001, there were
details of some 88 subpoenas which had been issued, and I would
like to have this made a part of the record, Mr. Chairman.
Chairman Leahy. Without objection.
[The information appears as a submission for the record.]
Senator Specter. The matter came into sharp focus on the
jailing of New York Times reporter Judith Miller, and I am
still at a loss to know why Special Prosecutor Fitzgerald
proceeded to get a contempt citation there. It was disclosed
that the source of the information was Deputy Secretary of
State Richard Armitage. There are many indications of the
chilling effect of what the Department of Justice has done.
So my request to you would be that if you have some
modifications on a balancing test to protect national security,
I would very much like to see those considered in the
legislation to do what Congress can to protect vital national
security interests. So it would be my hope we could have that
meeting that you and I talked about where we could sit down
with staff and try to work through it to see if an
accommodation could be reached.
On the subject of the McNulty memorandum, it continues to
be hard for me to understand why this is a bone of contention.
The issue was considered in the case of United States v. Stein,
with Federal Judge Kaplan in the Southern District of New York
writing an excoriating opinion, calling the government's
conduct on this issue ``shocking the conscience''.
But when you start with two very fundamental propositions,
Attorney General Mukasey, one is that the Commonwealth has the
burden of proof, and the second is that there is a
constitutional right to counsel, which necessarily involves
privilege, why should there be any inducement or benefit, let
alone coercion, by the Department of Justice to secure a
waiver? Senator Leahy and I have had considerable experience in
the prosecution of matters. District Attorney of Philadelphia
for 8 years. Senator Leahy--
Chairman Leahy. State's Attorney in Chittenden County,
Vermont.
Senator Specter. Senator Whitehouse. The place is full of
prosecutors. I would never have dreamed as D.A. of trying to
prove a case from the mouth of a defendant. How can you
reconcile or justify this sort of conduct by the Department of
Justice to prove its cases?
Attorney General Mukasey. I understand. I don't justify, or
reconcile, or encourage, or condone any coercion of anybody to
waive the attorney/client privilege. I think we've made that
clear--I hope we've made it clear--to our prosecutors. We have
put in place another memorandum relating to the question of
when it is that information can be sought. Prosecutors need to
basically raise their hands and say ``may I''. The need to
approach the Department and to ask the Department whether there
is information that they can seek that may be considered
privileged in two categories. One is simply facts.
Senator Specter. Attorney General, I don't want to cut you
short, but I've got less than a minute left.
Attorney General Mukasey. I'm sorry.
Senator Specter. I would like this to be a follow-up matter
for us to sit down and talk about at length. We've had former
Attorney General Meese and former Attorney General Thornburgh
criticize the memo. I think the McNulty memorandum is not the
appropriate approach. Rather than take more time today, I think
that perhaps we can come to an accord on it. I'd like to sit
down with you on it.
Attorney General Mukasey. The one point I simply wanted to
make was that, under the McNulty memorandum, there have been
no, zero, requests for a waiver of the attorney/client
privilege. No requests for a waiver.
Senator Specter. During your tenure, you mean?
Attorney General Mukasey. During the duration of the
McNulty memo.
Senator Specter. Of the McNulty memorandum?
Attorney General Mukasey. Yes. Corporations have been
allowed, if they wanted to, to come forward and ask for that as
a consideration for avoiding indictment, which they want to do.
And to say that they can't do that is to sacrifice their
welfare for the good of--I mean, it's to deny them the right to
be the judge of what's good for them. I don't think that's
advisable either. But I'd like to--I'd be happy to talk to you
further about it.
Senator Specter. Well, even in the situations you state,
the corporation may find it to its advantage, but what's
happening to the individuals who are being asked to give up the
attorney/client privilege? Let's go over this in some detail,
if we may. Would you agree to sit down with us and talk about
it?
Attorney General Mukasey. Yes.
Senator Specter. OK.
A couple of other points, very briefly. I note in the Wall
Street Journal today a report that the FBI is picking up a
criminal investigation on possible fraud and possible insider
trading on subprime, and I'd just encourage you to give that a
very, very high priority because of the very heavy impact. This
committee is considering legislation by Senator Durbin, and
separate legislation by myself on it.
The final point I want to bring up with you is whether,
with your administration, we might take a fresh look at the
issue of the contempt citations which are outstanding against
some of the executive branch officials. I think it is very
unfortunate to have those contempt citations outstanding
because those individuals are just the messengers.
Senator Leahy and I, for the past several years, have been
trying to work out a formula where we could question former
White House counsel Harriet Miers and others to try to satisfy
ourselves as to the investigation of the discharge of the U.S.
Attorneys. I think if we could come to terms on the transcript,
that we might well be able to unlock the controversy on it.
In your confirmation hearings, you spoke favorably about
the desirability of a transcript. This is a matter that has
been on the President's personal agenda. He appeared on
national television when this matter broke and said that he
would make available Ms. Miers and others, providing that no
oath was administered. Well, I think an oath is desirable, as
one was administered to you today. But I personally would be
willing to forego it because there is a penalty for false
official statements. It carries the same penalty, 5 years.
He didn't want to have both houses have people at the
hearings, and I think that's something that could be
accommodated with a joint inquiry by the House and Senate
Judiciary Committees.
He didn't want to have it public, which I think is a bad
idea, but I would concede that. They wanted to have no
transcripts. I believe that the transcript issue really is
indispensable, more for the protection of the witness than for
anybody else. My question to you is, would you be willing to
revisit this with your new administration to see if we can come
to some terms?
I think the contempt citations will amount to nothing more
than wheel-spinning and will take years to resolve. We face the
obstacle that the action has to be brought by the U.S. Attorney
for the District of Columbia. I understand your position is
that that would not be authorized. Is that correct?
Attorney General Mukasey. There are opinions of the Office
of Legal Counsel going back many administrations confirming
that senior advisors to the President are immune when the
privilege is invoked as to testimony for their executive acts,
otherwise serious separation of powers issues are raised. The
history of executive powers issues and oversight issues has
long been one that has been deferred or avoided by
accommodation. People have been accommodated in all kinds of
different ways, ways that I know about and a lot of which I
don't.
Senator Specter. But Attorney General Mukasey, isn't the
matter of immunity of those executive officials a matter for
the courts, not a matter for decision by the executive solely?
That's why the Congress brings a contempt citation and seeks to
have it enforced. It ought to be a judicial determination, not
a unilateral ex parte determination by the executive giving
immunity to itself.
Attorney General Mukasey. Most respectfully, if the topic
on which they are to be interrogated involves their official
duties and they are senior advisors to the President, it's my
understanding that if they are instructed to invoke executive
privilege--
Senator Specter. Where does that immunity come from, an
executive order or executive practice?
Attorney General Mukasey. A direction by the President,
just as--I mean, it is something that has been recognized by
the courts. The same way it is not mentioned in the
Constitution any more than congressional oversight is mentioned
in the Constitution, but these are two--
Senator Specter. Attorney General Mukasey, I don't--
Attorney General Mukasey.--matters that are basic.
Senator Specter. I don't think that's correct when there's
been an effort for enforcement of a contempt citation. There's
been a determination by the judicial system. Well, let us--I'm
way over time and I appreciate the indulgence. But would you be
willing to reconsider the whole issue to see if we can find an
accommodation in an era now starting off a new session, where
we're trying to have cooperation between the executive and
legislative branches?
Attorney General Mukasey. I'd be willing to try to find an
accommodation, but I don't want to suggest that I'm going to
overturn longstanding opinions.
Senator Specter. Well, OK. There's no longstanding rule
against a transcript, is there?
Attorney General Mukasey. I don't know that.
Senator Specter. You don't know that?
Attorney General Mukasey. No, I don't.
Senator Specter. Sometimes, Attorney General Mukasey, it's
hard to get an answer on something that's very fundamental. How
can there be a longstanding tradition against having a
transcript when executive officials are questioned by members
on congressional oversight?
Attorney General Mukasey. This is different from
congressional oversight. These officials are--I mean, these
officials are, as I understand it, senior advisors to the
President who are being subpoenaed. This is not the Attorney
General. These are people who are senior advisors to the
President.
Senator Specter. But the President has agreed to make them
available. It comes down to a narrow issue of the transcript.
Attorney General Mukasey. To the circumstances.
Senator Specter. And you're suggesting there is a rule and
a precedent against a transcript?
Attorney General Mukasey. If I suggested that, I didn't
mean to suggest it. I said I don't know whether there is.
Senator Specter. So it's not what you're suggesting, it's
just that you don't know?
Attorney General Mukasey. Correct.
Senator Specter. Well, let's try to find out.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you. I would note, when you
look into this, you'll find that at least one of the witnesses
who testified and claimed executive privilege at one point--
testified partially, claimed executive privilege partially,
also said that she had never discussed this matter with the
President, never had any of these matters discussed with those
who were going to discuss it with the President, and frankly we
found the claim of executive privilege to be a tad broad.
I don't want to use the word ``cover-up'', although that
was the first thing that occurred to me. Actually, it was the
second thing that occurred to me, too.
But let me go and follow up on Senator Whitehouse's
questions on the CIA tapes. If waterboarding was shown on these
destroyed CIA tapes, how would you determine--suppose we find
that there's a back-up to the tapes, and usually in these kind
of instances you do find there is a back-up. But let's suppose
there is a back-up and you were in there, and it found
waterboarding. How do you determine whether that's evidence of
a crime or not when there seems to be ambivalence by you
regarding the legal status of waterboarding?
Attorney General Mukasey. John Furman is in charge of this
investigation and he is going to follow it where it leads, and
that means wherever it leads.
Chairman Leahy. Well, let me ask you about that. John
Durham is the--
Attorney General Mukasey. I said ``Furman''. I meant
``Durham.''
Chairman Leahy. I knew what you meant. Is doing this
because it normally would have been the U.S. Attorney for the
Eastern District of Virginia who has recused himself. Why did
he recuse himself?
Attorney General Mukasey. I believe he recused himself over
issues relating to a case that he had and the fact that he
generally has a relationship with the CIA because they're
located in his district. I can't--
Chairman Leahy. Well, if Mr. Durham is going to use some of
his team, how do we determine, one, what the conflict was, and
whether anybody else has that conflict in that team?
Attorney General Mukasey. His team reports to him.
Chairman Leahy. To?
Attorney General Mukasey. To Durham.
Chairman Leahy. But some of them are taken from the Eastern
District of Virginia, are they not?
Attorney General Mukasey. So they are. The Eastern District
of Virginia has a requirement that when people appear in court
on behalf of the government, at least one of them be a member
of the bar of that court. People have been taken from that
office who do not have, potentially--it wasn't that there was a
conflict determined. There were things that were teased out to
determine the possibility that there may be a conflict and he
wanted to avoid that.
Chairman Leahy. But he made a recusal. In his recusal
request, did he lay out what it was that he was recusing
himself or why he was recusing himself?
Attorney General Mukasey. I'm not going to get into the
details of what it was he laid out, what it was responded.
Facts were teased out in such a way as to present the
possibility that there could be a conflict and in order to
avoid--
Chairman Leahy. You granted his recusal. Can you assure us
that nobody else in the office who is going to be working with
Mr. Durham has the same conflict?
Attorney General Mukasey. It's my understanding that the
people who were selected were selected because they didn't, and
couldn't, have the same possible conflict that was possible if
others worked on it. Mr. Durham is the person to whom they
report, not the U.S. Attorney.
Chairman Leahy. We sent you a letter that said, ``When and
how did Department officials or attorneys first become aware of
the evidence of videotapes of detainee interrogations?'' Do we
have an answer for that?
Attorney General Mukasey. You mean, beyond this case? No, I
don't.
Chairman Leahy. Well, in any case, when and where did the
Department officials or attorneys first become aware of
videotapes of detainee interrogations?
Attorney General Mukasey. That, I do not know.
Chairman Leahy. Did they ever view any of these tapes?
Attorney General Mukasey. I don't know that. And what was
done within the Department is not something that I would
disclose if I knew it.
Chairman Leahy. Well, wouldn't that be fairly important? If
they had viewed the tapes, that would mean that either their
tapes have not been destroyed or the Department of Justice was
looking at them prior to a decision being made to destroy them,
which raises all kinds of other questions.
Attorney General Mukasey. I didn't say I wouldn't look into
it. I said I wouldn't simply disclose it here.
Chairman Leahy. Well, perhaps you and I should discuss this
after you've had a chance to look into it in private, perhaps
with Senator Specter, because you understand the conundrum I
see in this case? If they had viewed them, that meant that at
some point they were there. There is a reason for the
Department of Justice to view them. Then the question becomes,
who gave the order to destroy them? Unless some are still
there.
Attorney General Mukasey. The question of who gave the
order to destroy them is, it seems to me, separate from whether
anybody from the Justice Department viewed them, and if so,
when.
Chairman Leahy. It depends upon when they viewed them.
Attorney General Mukasey. It may.
Chairman Leahy. For example, was anybody in the Department
asked about the advisability or legality of destroying the
tapes?
Attorney General Mukasey. I've seen a report relating to
that. I have seen no evidence relating to that.
Chairman Leahy. No evidence related to what?
Attorney General Mukasey. To somebody in the Department
advising as to the advisability of destroying the tapes. And in
any event, John Durham would be conducting that investigation.
Chairman Leahy. And you don't recall when and how the
Department became aware that the tapes had been destroyed?
Attorney General Mukasey. I recall when and how I became
aware of it.
Chairman Leahy. And that was?
Attorney General Mukasey. That was when I opened the door
to my apartment and picked up the Washington Post.
Chairman Leahy. I remember the time of a CIA Director no
longer alive who used to come to the Hill and say, usually the
day after the New York Times had reported a number of things
going on, I really meant to have told you about that, I was as
required by law to tell you about it. I forgot to tell you. The
third time he came up, the Intelligence Committee would say to
him, well, just mark the New York Times ``Top Secret'' and
we'll get the information--or the Washington Post, but in this
case the Times--and we'll get the information faster, second,
we'll get it in greater detail, and third, we'll get this
wonderful crossword puzzle.
Attorney General Mukasey. In fairness, it may well be that
that issue was on its way to me before that story appeared, but
that's--
Chairman Leahy. And I realize there's a million things that
come to you, so I--
Attorney General Mukasey. It's not that it came to me and I
forgot.
Chairman Leahy. This was a pretty big one.
Attorney General Mukasey. Yes.
Chairman Leahy. Were there communications between your
Department and the White House about the destruction?
Attorney General Mukasey. Not--I don't understand. I'm
sorry, I don't understand the question.
Chairman Leahy. Well, obviously at some point there was a
plan to destroy them. Was there any communication between the
Department of Justice and the White House about that?
Attorney General Mukasey. That is something Mr. Durham, it
seems to me, would look at.
Chairman Leahy. And when he's finished his investigation,
do you have any problems with him testifying before this
committee?
Attorney General Mukasey. We don't--we have never--I think
U.S. Attorneys have not testified as to pending cases, and I
don't see any reason to make an exception here.
Chairman Leahy. We may come back to that if we're unable to
find some of these other answers.
You've doubtless heard about how the White House, even
though they're required by law to maintain records, e-mail
records, now say they've destroyed many from the first couple
of years, or over a period of 2 years. Have you seen that in
the press?
Attorney General Mukasey. I saw a story that there were e-
mails that should have been there that aren't.
Chairman Leahy. Of course, we then also have that they were
using the Republican National Committee server, and we were
told that's all been destroyed. We were told that, oops, it's
all there on a back-up, but we're still not going to show it to
you. If they were not following the law on maintaining these
records, the laws are fairly clear that White House records
have to be retained. You may recall that Congress asked
extensive questions about that during the last administration.
Is this anything--if it turns out that they have not followed
that law, is that something your Department would look into?
Attorney General Mukasey. It seems to me I would know the
circumstances under which the records were not retained. There
are--
Chairman Leahy. Well, if the law--let's assume that the law
is clear that records have to be retained, but instead records
were destroyed. Does that raise any questions in your mind?
Attorney General Mukasey. It's something I would want to
know more about.
Chairman Leahy. Well, I would hope somebody would find out
about it, that when we'd get stonewalled by the White House
when we ask the questions why the law wasn't followed, I would
hope that the Attorney General would ask the questions.
I see Senator Grassley is here and it's his turn. Go ahead,
Senator Grassley.
Senator Grassley. Thank you. I'm glad to be back again with
you. Maybe you aren't glad that I'm back here, but I wanted to
leave our mark-up of the stimulus package to come over here and
finish some more questioning.
As you know, in the 1990's, whistle-blowers exposed major
problems with the FBI Crime Lab. Dr. Frederick Whitehurst, who
testified before you when you were a judge in New York, raised
concerns about the lack of expertise in the FBI crime labs. In
response, the former Attorney General recruited five outside
forensic experts to carefully review the work of the Crime Lab
and all of Dr. Whitehurst's concerns, and to make
recommendations. One of the changes was to ensure that the FBI
place scientists in charge of the lab. In other words, the FBI
put people with expertise in leadership positions.
Now there's another FBI whistle-blowers named Bassam
Youssef, who is prepared to testify about major problems with
the FBI's counter-terrorism operations. The FBI has taken the
position that neither Arab skills, nor expertise with Middle
Eastern counter-terrorism are required for management positions
in the counter-terrorism programs. This sounds too much like
the days when the FBI didn't think it needed a scientist to run
the crime labs.
After your confirmation hearing I asked you about these
issues and whether you would consider appointing an independent
panel of experts to give them serious consideration. In your
written answers, which we just received, you said you were
unfamiliar with the problem outlined by Youssef and that it
would be among your highest priorities to familiarize yourself
with the Bureau's counter-terrorism efforts.
Special Agent Youssef, through his counsel, provided my
office with a copy of a 10-page letter dated October 11, 2007,
filed with your office, detailing threats to our Nation's
security caused by the failure of the FBI to hire and promote
subject matter experts within the FBI's Counter-Terrorism
Division. The examples set forth in that letter are extremely
troubling.
I'd like to have that letter included in the record, Mr.
Chairman.
Chairman Leahy. Without objection.
[The letter appears as a submission for the record.]
Senator Grassley. What action has your office taken to
investigate the issues and concerns raised by Mr. Youssef's
October 11, 2007 letter?
Attorney General Mukasey. As I understand it, the matter
with Mr. Youssef is in litigation and, that being the case, I
can't, at this point, get into it.
Senator Grassley. Well, can I ask you if you would plan to
seek an independent review of Youssef's allegations about how
the lack of expertise among FBI managers is hindering its
counter-terrorism efforts? Why or why not?
Attorney General Mukasey. I think we await the progress of
that litigation.
Senator Grassley. OK.
Attorney General Mukasey. Which raises that and other
issues.
Senator Grassley. So we've got somebody in the FBI who says
our counter-terrorism efforts are being weakened, and we are
going to wait for the courts of the United States to make a
decision, and while we're under threat of attack from
terrorists every day, we're told? I believe that we are under
threat of attack every day.
Attorney General Mukasey. We are. The FBI has been
improving its counter-intelligence section and adding to its
counter-intelligence section, wholly apart from Mr. Youssef's
allegations. That's an ongoing process in which I am actively
involved, and the Director is actively involved.
Senator Grassley. Mr. Youssef is also a central figure in
controversy over the so-called exigent letters issued by the
FBI. These letters obtained phone records by falsely claiming
an emergency and promising that a grand jury subpoena would be
issued later. According to Youssef, he helped the FBI identify
and fix problems with these letters. The FBI General Counsel
recently briefed committee staff and claimed that her office
did not know of the letters ``at the time''.
However, according to page 93 of the Inspector General's
report, a division of the General Counsel's Office did know
about the exigent letters as early as 2004, long before the FBI
stopped sending them. We should not have to rely on misleading
statements from FBI officials when there is evidence available
that would clarify exactly how this mess happened. The
Committee requested all of the e-mails related to the exigent
letters last year. DOJ promised them to us, but we have
received only one small batch of heavily redacted documents.
When are these documents coming? It has been almost a full year
since they were asked for.
Attorney General Mukasey. I will find out about the review
of the documents. It was my understanding that, following the
IG report, there were changes put in place in the oversight of
that, of the issuance of the letters, and that those oversights
are being given a chance to work, and hopefully they are
working. But the problem was lack of an oversight mechanism.
Senator Grassley. In this week's State of the Union
address, President Bush outlined the steps the administration
has taken to address the ongoing challenge of illegal
immigration. Specifically, the President spoke of increasing
work site enforcement, expanding the number of agents at the
southwest border, and the construction of the fence. As a
follow up to the remarks, is the Justice Department committed
to actively pursuing cases against employers who knowingly hire
illegal aliens, and do you see this as a priority with the
Department of Justice?
Attorney General Mukasey. It is, we are, and I do.
Senator Grassley. In November, Senator Bond and I wrote to
you about the disturbing case of former FBI agent Nada Prouty.
She is a Lebanese national who recently plead guilty to
immigration fraud and unauthorized access to information about
cases involving fundraisers for terrorist organizations like
Hezbollah.
In response to that letter, the FBI provided briefings on
the case, where we learned that before hiring her the FBI's
background investigation failed to uncover the following
information: (1) Prouty had overstayed her student visa; (2)
Prouty engaged in a sham marriage in order to obtain
citizenship; and (3) Prouty's brother-in-law and former
employer was a Hezbollah supporter.
According to the FBI, they missed all of this because they
assumed she was checked out before getting her U.S.
citizenship. I was pleased to learn that in response to this
incident the FBI will now be reexamining the background of all
of its agents originally from foreign countries.
Can you explain a little more about this effort? For
example, how many agents' backgrounds will have to be reviewed,
and how long will it take? Will agents who were originally
citizens of certain high-risk countries be targeted for
scrutiny? Will all non-native born agents be reexamined?
Attorney General Mukasey. I can't tell you how many agents
and whether it's going to involve a reexamination of all non-
native born agents. That said, I believe it was more than
simply reliance on Prouty having become a citizen. But there
are additional safeguards that I understand are being reviewed,
contemplated, and put in place.
Senator Grassley. The Inspector General's recent report on
its recommendations following the Robert Hanson spy case said
that the FBI resisted dedicating a special unit exclusively to
internal security. The FBI finally agreed to implement this
Inspector General's recommendation only recently, years after
the Hanson case. If the FBI had a unit focused exclusively on
internal security, then perhaps Prouty could have been caught
sooner. How long will it be before this dedicated unit is
actually up and running, and will the new unit be involved in
the project to recheck the backgrounds of foreign-born FBI
agents?
Attorney General Mukasey. My understanding is, the FBI does
internal security on an ongoing basis.
Senator Grassley. Would you start over again, please?
Attorney General Mukasey. I'm sorry. It was my
understanding that the FBI does internal security on an ongoing
basis, and I will discuss that with the Director.
Senator Grassley. OK.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Grassley. I know this is
an area where you've had a great deal of interest and you've
followed up on these type of questions, whether it's a
Democratic or Republican administration. I appreciate the fact
that you show that kind of concern.
Senator Grassley. I hope that helps my credibility.
Chairman Leahy. It does with me.
Senator Grassley. OK.
Chairman Leahy. Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
Thank you, Attorney General. I guess I'm trying to sort out
the process question related to the determination of whether
waterboarding is torture. In terms of your advisory
responsibilities to the government, you've said you're not
going to engage those because there is not a set of concrete
facts or circumstances that necessitate a determination because
you've disclosed to us that waterboarding is not part of the
CIA's enhanced interrogation technique regime.
That still leaves open this question whether, under
2340(a), which uses the term ``torture'' specifically in the
statute, there are concrete facts and circumstances that would
necessitate or justify an analysis toward that purpose.
Given that the concrete facts and circumstances
justification evaporates, in terms of 2340(a), in that they're
arguably, whatever it is, it is and you can go back and find
it, it's as concrete as the past ever is, I'm trying to
determine if that is taking place, the analysis, if you are
waiting, as you suggested for John Durham's investigation to
look more into what happened, and then it would kick off from
that once the preliminary determinations were made, or if there
has been a policy determination made that because there has
been a claim of authority, there will be no analysis, there
will be no investigation, there will be no determination, or
some fourth category. What is the process for coming to this
decision vis-a-vis 2340(a)?
Attorney General Mukasey. The process for coming to any
determination under any criminal statute is that facts come to
the attention of the Department that warrant an investigation.
As of now, so far as I'm aware, John Durham's investigation is
into the destruction of the tapes. That may very well engage
the question of what was on the tapes, if what was on the tapes
was something that is barred by the torture statute. That is
several removes.
Senator Whitehouse. Couldn't you and I, but for the non-
classified nature of this particular setting, engage in a very
concrete and factual discussion about subject matter that would
at least give cause for inquiry?
Attorney General Mukasey. We could engage in a discussion.
It would not be a concrete and factual discussion because we
would be talking about if this, if that, if the other. We
would--
Senator Whitehouse. In a classified setting?
Attorney General Mukasey. In a classified setting. That's
all we--talking about.
Senator Whitehouse. It may or may not be ``if''.
Attorney General Mukasey. I beg your pardon?
Senator Whitehouse. In a classified setting, it may or may
not be an ``if.''
Attorney General Mukasey. I'm not entirely sure what that
suggests.
Senator Whitehouse. Well, I'm trying to be careful not to
step outside of the boundaries that I'm obliged to pursue, to
honor here, of not being--not disclosing classified
information. At the same time, I'm trying to get some more
information because I don't think it's fair to say that nobody
has any basis from anywhere. I mean, just read the New York
Times, read the Washington Post, read what people have said on
television. There's been a former CIA official who has been on
the air waves.
If that's not enough to at least open the first red flag as
to whether an inquiry should go forward, I don't know what on
earth could be. So that answer, to me, is just totally not
credible. So then the question is, you know, where do we stand?
Because I think anybody who even has a public view of what's
going on would suggest that there's something that might at
least merit the beginning of inquiry as to whether an
investigation might be opened.
Attorney General Mukasey. All of that depends on whether
certification was given, whether permission was given, and
whether it was permissibly relied on. It would not--it should
not turn on one person's current view of what the statute
requires or doesn't require, because if it does the message is,
it all changes.
Senator Whitehouse. But aren't there two questions here?
There is no exemption under 2340(a), depending on whether the
conduct was authorized by a supervisory official or not. There
is no Nuremberg defense built into this criminal statute.
So if you are to apply it, it would strike me that you
would want to apply it not before an investigation has taken
place, but once an investigation had reached a point where you
were able to say, OK, here's what we think took place, here is
whether or not it's in violation, and here is the legal
analysis as to whether or not mens rea is adequate given the
nature of the authorization.
But it strikes me that you're telling me that nothing in
that process is taking place because the certification alone
obviates any further inquiry, irrespective of how developed the
facts are. I'm just trying to get, which is this? Is it that
there aren't facts well developed? That doesn't seem credible.
Is it, because there's authorization we're not going to look at
this no matter what? If that's your position, fine, but let's
just say so and then I'll understand.
Attorney General Mukasey. That's not my position.
Senator Whitehouse. What is your position?
Attorney General Mukasey. My position is that there is an
ongoing investigation and that I'm not going to speculate on
what might or might not have happened, particularly with regard
to authorizations.
Senator Whitehouse. But the ongoing investigation, as far
as we know, is only into the destruction of tapes. It has
nothing to do with the underlying interrogation. Unless you're
telling me that that's the forum. Is that the forum in which
this will get decided?
Attorney General Mukasey. That is, in part, dependent on
what John Durham's investigation shows.
Senator Whitehouse. Well, let's hypothesize that a little
further. If it shows that waterboarding took place--
Attorney General Mukasey. Let's not hypothesize anything.
Senator Whitehouse. Well, there are only two choices, so
it's not going to take us a long time to discuss the
alternatives. It either did or didn't.
Attorney General Mukasey. It's not a question--it's not a
question of taking a long time, it's a question of telling
agents out there that we are investigating the CIA based on
speculation about what happened and whether they got proper
authorizations, and I don't think that ought to be the message.
Senator Whitehouse. Well, there's an American public--my
light has just gone on. If I may, I would like to thank you for
the--and applaud you for the re-erection of the firewall
between the Department of Justice and the White House. I
thought the manner in which it was done was excellent. I'm
sorry we seem to be at loggerheads again on this subject, but I
didn't want to close my questioning without letting you know
that, in that area and many others, I appreciate and applaud
the work you are doing at the Department of Justice.
Attorney General Mukasey. Well, this is a good faith
exchange. I'm not suggesting that if you hadn't said that that
it wouldn't--you know, that there would somehow be a problem. I
appreciate that you said it, but--
Senator Whitehouse. I also want to be fair.
Attorney General Mukasey. Me, too.
Chairman Leahy. Before I go to Senator Cardin, just one
thing to make sure on a question that Senator Cornyn and I were
talking to. I don't expect an answer on this here. I discussed
this with you out in the anteroom, Mr. Attorney General. But
the FOIA legislation that we worked on in a bipartisan way that
was passed overwhelmingly, signed into law by the President,
that required the Office of Government Information Services,
OGIS, which is at the National Archives and Records
Administration, required that be there, the ombudsman, all the
other things we talked about.
Now we see in the Department of Justice, in the 2009 budget
for the administration, there may be an attempt to move that
into the Department of Justice from where the law says for it
to be. The law says, keep it in OGIS and the National Archives,
because it's the one place it stays as far away from politics
as any department in our government. I'm not looking for an
answer, but those who are taking notes of our conversation who
are here from your Department, will you please look at that
closely? I would like to know, and I know that Senator Cornyn
will want to know.
Attorney General Mukasey. I will look at it.
Chairman Leahy. It's obviously not a partisan request. This
is something where the two of us are joined, and we just want
to make sure it's done.
Attorney General Mukasey. I understand that.
Chairman Leahy. Senator Cardin--
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy.--has been presiding over the Senate--I
remember those days. Would you like to go ahead, sir?
Senator Cardin. Well, thank you very much. As I was
explaining to our Chairman, I might have been back a little bit
earlier, but the person speaking on the floor was the junior
Senator from Vermont, so it took a little bit longer.
First, General Mukasey, as many have said, or most, to
compliment you in so many ways in which you have opened up
communication with Members of the Congress, but also opening up
to try to correct some of the problems that have been very much
documented over the last several years, and we certainly
appreciate the ongoing working relationship between Department
of Justice and the Congress.
I want to make a couple observations first, because at
least from my point, I want to clarify a couple things that
have been said here by my colleagues and yourself.
Waterboarding, of course, is an issue that was deeply involved
in your last appearances before this committee. I just really
want to make an observation about waterboarding, if I might.
First, from any standard on basic human rights, you cannot
justify waterboarding. I think we all acknowledge the horrible
process it is. Second, from the point of view of U.S.
leadership internationally, we are tarnished when we try to
defend any use of waterboarding. Then the third point I would
make, is that if it's fair under extraordinary circumstances
for us to try to justify the use of waterboarding, then it's
going to be difficult for us to protect American interests when
powers that are in a war with us decide that they will use it
against U.S. soldiers.
So for all those reasons, I would just urge you, as we go
forward in this debate--and I know you've only been in office
for 3 months and there's a lot of issues that you have been
confronting--that I believe clarity is needed here and would
just urge you to reflect on that.
I'm not asking you to respond any further on the subject,
but to reflect on that, because I think it is troublesome. I
chair the Senate Helsinki Commission, which is involved in
international human rights. I must tell you, it's very
difficult for us to explain why the administration is hedging
on this issue.
The second point, on the issue we're going to have to deal
with next week on FISA, on the retroactive immunity, I
understood your responses to several of our Senators, including
Senator Specter, but I would urge you also to take into
consideration what Senator Specter said about the precedent of
giving retroactive immunity as to the further review by our
courts of potential abuses and whether giving retroactive
immunity could have permanent damage on the appropriate role of
the judiciary in protecting the civil liberties and rights of
the people of this country.
I think that there have been good-faith suggestions made
that would protect the telephone companies, but also try to
preserve the rights of our courts. I applaud Senator Specter
and Senator Whitehouse for their proposals. There are other
proposals that are out there. I would urge that you take a look
at this to see if maybe there isn't a common ground that we
could come together on in order to work out the issue of the
telecommunication companies without jeopardizing the roles of
our courts.
The third point I would raise with the sunset of this law,
which you have in your statement urging against the sunset
because of predictability of the statute, the Senate bill
that's on the floor has a 6-year sunset, the House bill has a
2-year sunset. I have an amendment for a 4-year sunset. I
believe it's important for the next administration to engage
this issue. I would just point out that whoever is responsible
for using the power contained in FISA, it's going to be a much
stronger position if Congress is engaged on the subject.
It's easy to say, well, we'll provide the information. But
if there isn't a date in which Congress has to act, the level
of cooperation generally between agencies and the Congress is
not as much, and Congress' interest is not as much. I think it
would be very helpful for a continued role between Congress and
the intelligence community and the administration on these
subjects, and I think a sunset is very important.
But that's not what I want to question you about. I just
wanted to make observations on those points. Again, I'll give
you time if you want to respond on any of those three. But I
want to make sure we get, in this hearing, to the election
issues and the Civil Rights Division. I don't believe there's
been enough attention so far asked on those issues.
We have an election coming up in 2008, and if this election
is any indication of what's happened in 2006, then I think we
can anticipate there will be efforts made by candidates, or
political parties, or individuals to try to suppress minority
voting. You and I have talked about that. We agree that that
should have no place in American politics. We've seen in
previous elections fraudulent material and information that has
been used in minority communities to intimidate voting.
I just would like to get some clarification from you, going
into this election cycle, how you intend to have the Department
of Justice engaged in this election to make sure that those
type of tactics do not go unchallenged and that, if necessary,
from your point of view the laws are amended. We have a law
pending here that we hope to get passed that would strengthen
the Federal Government/Department of Justice role and making
sure that type of activity does not take place in politics in
America. But I would hope that you would give fair warning to
any candidate, or political party, or individual, that those
type of tactics will be challenged by the Department of
Justice.
Attorney General Mukasey. We have monitors, and will have
monitors, out to make sure that there is access to the ballot
by people who should have access to the ballot. Also, there is
in draft a memo that I am sending to all prosecutors,
indicating to them that their sensitivities in a time of
election have to be heightened to address in part those issues,
and in part the dangers posed by bringing prosecutions that
could be perceived as somehow affecting the outcome of
elections and--to that too.
I want us to enforce voting rights. I want us to make sure
that there is no perception that any prosecution or withholding
of prosecution is done for the purpose of affecting the outcome
of an election, and that any investigations are carried forward
only based on what the facts show, what the law shows, and
whether a case is ready to go or not and based on whether it
would or would not be appropriate timing for any political
party or group.
Senator Cardin. I appreciate that. Let me be more specific.
If your office learns of activities that are aimed at
suppressing vote by giving out wrong information, such as, you
find an orchestrated process where a candidate is giving out
information telling minorities that they'll be arrested if they
have unpaid parking tickets, that I just want to make it
clear--I hope it's clear in your agency that you will look at
those types of allegations and investigate them, and if
necessary prosecute to the full extent that you can under law.
Attorney General Mukasey. You and I have discussed
statements that are clearly fraud. This isn't a matter of
opinion about one candidate about another.
Senator Cardin. Right.
Attorney General Mukasey. This is misinformation about
voting places, about having parking tickets be the excuse for
denying somebody the right to vote, and so on. We are going to
make every effort to make sure, and use every resources at our
command to make sure, that that does not happen.
Senator Cardin. I thank you for that answer and I
appreciate that answer. Just one more comment or question
dealing with the Civil Rights Division. You and I have talked
during your confirmation hearings about the priority of that
Division. I know that the head is subject to confirmation and
there is a nomination that has been made. I again ask you to
give your personal attention to the Civil Rights Division and
return it to its historic role of being the protector of the
rights of minorities and look for those types of actions that
will have impact to empower all people in our country to the
civil liberties and rights of our Nation.
Attorney General Mukasey. We observed the 50th anniversary
of the creation of the Civil Rights Division this year, which
means in my lifetime there was no Civil Rights Division. Yet,
that division has become emblematic of the role of the Justice
Department. I know that. I've met with the nominee to be
Assistant Attorney General in charge of that division. I've met
with the unit chiefs within that division to encourage them and
to reinforce them in their historic mission, and it is my
belief that they are so encouraged and so reinforced, and I
intend to make sure that they are. I appreciate your interest
in this because it just--
Senator Cardin. Yes. And I look forward to working with you
in that regard. I think it would be helpful. There are several
members of this committee, many members of the Senate and
House, that are interested. I think it would be helpful to
continue this dialog, and I look forward to the confirmation
process for the Assistant U.S. Attorney.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Whitehouse, did you say you had one more question?
One more little question?
Senator Whitehouse. Mr. Chairman, what I think I'll do,
actually, is put it in the form of a letter so that I don't
extend the hearing any further. It has to do with the Office of
Legal Counsel, which for a long time has been sort of the
internal legal compass for the Department.
And, as you know, some of the declassified opinions, some
of the declassified sections of highly classified opinions that
I've had access to give me cause to worry that it has become
sort of a hot house for rogue ideological opinion protected
from the winds of scrutiny and peer review and other things by
the ``classification'' shield, and I think some of the ideas
need to be reviewed.
And I would like to take that up, but I will take that up
at a later time. I appreciate very much the Chairman's
indulgence, and I appreciate the Attorney General's responding
to that.
Chairman Leahy. No. I think that's an area I'm quite
interested in, too. I realize some of these we may have to
discuss in a classified section. We have read--there's actually
been books written on this, on the disarray of the Office of
Legal Counsel and the problems that it has caused all the way
through the administration. The Senator from Rhode Island
raises a good question. Perhaps that's something that we can
meet privately first to talk about, unless you wanted to say
something here.
Attorney General Mukasey. I know that the regnant wisdom is
that if you comment when there's no question, that you're
putting your foot in your mouth.
Senator Whitehouse. Good call. [Laughter.]
Attorney General Mukasey. But the book, or a book that you
refer to in referring to OLC says that, regardless of what you
think or don't think about the opinions, nobody in that unit
ever believed that they were violating the law, or ever
intended to violate the law. Those are two important points
that Jack Oldsmith made in his book, and that, in my view, too
rarely get discussed.
Chairman Leahy. No, I agree with that. I'm not suggesting
that you break the law. I just want to make sure that we have
opinions of that nature done because it's the best law, not
because it's an ideological--
Attorney General Mukasey. Absolutely. We agree on that.
Chairman Leahy. I have no problems with whoever is
President to say, OK, if we can act within the law, here's
policies I want carried out. But I want to make sure somebody
looks at the law and says, well, you can do that, Mr.
President, or you can't do that based on what the law is. In
fact, I had one other area on this, actually raising from two
different writers who often have different views. Nat Hentoff
raised concerns about Mr. Durham's lack of independence. He
said that ``Durham will report to a Deputy Attorney General,
who then reports to the Attorney General, and thereby will not
be autonomous.''
Then conservative scholar Bruce Fein, who served in the
Reagan Justice Department, who has testified before this
committee a number of times, raised similar questions. He said
the flaw in the current arrangement is that the Attorney
General is still entrusted with determining whether to invoke
State secrets of executive privilege to withhold critical
evidence from the prosecutor. It would be like President Nixon
determining what evidence to give Archibald Cox or Leon
Jaworski, investigating Watergate.
I read both those articles. The question came to my mind,
why wasn't he just given the kind of authority that Special
Counsel Patrick Fitzgerald was given in the CIA leak case?
Attorney General Mukasey. There is a regulation regarding
when you appoint a Special Counsel and when you don't. You
appoint a Special Counsel when there's a conflict. To suggest
that every time a big case comes up in which the government is
under investigation in some fashion there's a conflict, does
two pernicious and unnecessary things.
Chairman Leahy. So what you're saying is that there may
have been a conflict with a U.S. Attorney, but you don't see a
conflict in your office, therefore he doesn't have to have the
position of Mr. Fitzgerald?
Attorney General Mukasey. Correct. I don't want to tell
everybody that, every time that happens, they can't have faith
in the Justice Department because they can't, and I don't want
to tell the Justice Department, we don't have faith in you
because this is a big investigation.
Chairman Leahy. Of course, then that raises the question I
asked earlier, what was the conflict that required the U.S.
Attorney to recuse himself.
Attorney General Mukasey. That was the result of a
consideration of possible facts, and the act that was done was
done out of an excess of caution.
Chairman Leahy. I realize we're going in a bit of a circle.
We probably will have this conversation more. But I see Senator
Durbin is here. Senator Durbin will ask his questions, and then
I have a couple of closing remarks and you'll be able to go
back to running the Department and we'll be able to go back to
seeing what mischief we can cause on the floor of the Senate.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
General Mukasey, I wanted to ask you a question or two. Are
you familiar with former Deputy Attorney General Jim Comey?
Attorney General Mukasey. Yes.
Senator Durbin. Do you have an opinion of him as--
Attorney General Mukasey. Yes.
Senator Durbin [continuing]. An attorney, an individual?
Attorney General Mukasey. I worked with him when he was
U.S. Attorney, I was the chief judge. He had occasion to be
before me, both in his capacity as a lawyer and because there
are administrative matters that the U.S. Attorney has to deal
with with the chief judge, which I then was for a period of
time. I have since, since what put me here put me here--I have
since had occasion to talk to him to get his counsel on the
Justice Department in general. He is a very sound, able person.
Senator Durbin. I take it from that you respect his
judgment?
Attorney General Mukasey. I do.
Senator Durbin. So let me ask you about a man by the name
of Steven Bradbury. When you first came before this committee,
I asked you if you were familiar with Mr. Bradbury's background
in the Department and you said that you were not, and you would
like to look into it. You're probably familiar with the fact
that he's been associated with some of the most controversial
decisions by the Department of Justice under Attorney General
Gonzales and has raised serious questions about memos that he
was involved in relating to the issues of interrogation, for
example, and warrantless wire tapping, so much so that it's
raised some serious questions for myself and many others who
serve in the Senate about his fitness to serve in the Office of
Legal Counsel.
When Mr. Comey was asked about some of these memoranda that
Mr. Bradbury was involved in, he said that the Justice
Department would be ashamed if the memos became public. You
said of Mr. Bradbury recently, ``Steve Bradbury is one of the
finest lawyers I've ever met, and I've met a lot of very good
ones. I enjoy working with him. I want to continue to work with
him.''
I'd like to ask you, have you reviewed all of Mr.
Bradbury's opinions?
Attorney General Mukasey. I can't say that I've reviewed
all of Mr. Bradbury's opinions. I've reviewed some of them. You
asked me whether I know Jim Comey, and I know him somewhat
because of the dealings that I described and because of the
contact that I described afterwards. I also have come to know
Steve Bradbury. I had some limited contact with him before my
confirmation. I've worked with him more closely since I've been
there.
To say that Jim Comey has good judgment is not to say that
he is inevitable in every judgment he makes or that the
judgment he makes about one document is a reflection, a
permanent scar on the reputation of the author of that
document.
Senator Durbin. Well, let me ask you about two specific
areas which you've been called on, probably more than any
others, to comment on. First, is the area of interrogation
techniques and torture, and the second relates to warrantless
wire tapping surveillance. I mean, these are areas of great
concern to all of us, and to you. Have you reviewed the
opinions that he wrote on those two subjects?
Attorney General Mukasey. I have reviewed the--principally
the opinion that he wrote relating to the current program and
reviewed it with the assistance of others outside OLC, and
arrived at a determination, and that determination was that
that program was lawful.
Senator Durbin. Let me ask you this. Did you happen to
review the opinion where he spoke of the so-called combined
effects which authorize the CIA to use multiple abusive
interrogation techniques in combination?
Attorney General Mukasey. If it's the opinion relating to
the current program, then I necessarily reviewed it.
Senator Durbin. Now, according to the New York Times, then-
Attorney General Alberto Gonzales approved this opinion over
the objection of Deputy Attorney General Jim Comey, who said
the Justice Department would be ashamed if the memo became
public.
Attorney General Mukasey. The opinion--
Senator Durbin. Did you have a chance to review that
opinion?
Attorney General Mukasey. The opinion that I reviewed
relating to the current program was dated in 2007, so I don't
think the timing works out.
Senator Durbin. I don't think it does, either. But could I
ask you, as I did in the previous hearing, if you would
consider reviewing that opinion and perhaps get back to me if
you are still of an opinion that he is a man of good judgment
after you read that opinion which Mr. Comey said would be a
source of shame to the Department if made public?
Attorney General Mukasey. I will look at it again.
Senator Durbin. I would appreciate that very much. I made
that request of you during your confirmation hearing, that you
review all of Mr. Bradbury's opinions, and it appears that you
haven't had that opportunity. I hope you will soon.
Mr. Bradbury has been the source of praise by some members
of this committee, but others, myself included, have serious
reservations, not only about his continued service, but the
fact that he appears to be serving in violation of the
Vacancies Reform Act. He is the de facto head of this agency,
when in fact he has not been approved by the Senate.
So I would say, do you feel that he is the effective head
of the Office of Legal Counsel at this point?
Attorney General Mukasey. I have dealt with him as the
person--as the principal person at that office.
Senator Durbin. Doesn't this violate the spirit of the law,
the Vacancies Reform Act, since adequate time has lapsed since
his nomination was returned by the Senate?
Attorney General Mukasey. I believe he has been re-
nominated.
Senator Durbin. I believe he has, too. But pending that,
the fact is that he has taken over the head of a very--or is
the head, effective head, of one of the most important parts of
your Department and appears to be serving in violation of the
law. I won't go any further with that line of questions, other
than, we may see one another again in this context. I will then
ask you again if you've had a chance to read Mr. Bradbury's
opinions, and I hope that you will. I would suspect that his
nomination will depend on your review of those opinions and
your testimony on those.
Attorney General Mukasey. I think those opinions would be
considered principally in light of whether they relate to
things that are current or not. But I will review them.
Senator Durbin. Well, let me just close, Mr. Chairman, and
thank you, to say that I don't think that's adequate. I think
to ignore what happened before in the Department relative to
some opinions which have been disavowed by this administration
because they were so excessive, is to raise some serious
questions about this man's fitness to continue in this
capacity.
Attorney General Mukasey. And I would point out that his
opinions were not--his opinion was not that opinion.
Senator Durbin. Well, I will suggest to you that if this
opinion was viewed as shameful by Mr. Comey, that it deserves
your close scrutiny. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Well, Mr. Attorney General, one, I appreciate the fact that
you have kept in touch on a number of issues. I have
appreciated the things we've done that have been on a personal
basis and not necessarily business. I also appreciate the fact
that you want very much to restore if need be, and to maintain
if that works, the high morale of the Department of Justice, a
Department that has some of the finest, finest lawyers in
America. I said to you the other day, if you or I spent a lot
of time with many of them we wouldn't have any idea what their
politics are. I think that is very, very necessary because we
rely on that.
But I'm worried we're not getting enough clarity on
critical issues. We have heard references to legal opinions, to
justifications. Facts remain hidden from the Congress and the
American people. It's a hallmark of our democracy that we say
what our laws are and what conduct they prohibit. We have seen
what's happened when hidden decisions are made in secret memos
and that's held from the American people, held from their
representatives here in Congress. It erodes our liberties, but
it undermines our values as a Nation of laws.
As I said when I opened this hearing, it's not enough to
just say waterboarding is not currently authorized. The
Attorney General of the United States, I feel, should be able
to declare that it's wrong, that it's illegal, that it's beyond
the pale. It's been that way since the time of President
Theodore Roosevelt.
Now, earlier today I put in the Record a letter I received
from Major General John Fugue and Rear Admiral Don Gutter, and
Rear Admiral John Hudson, and Brigadier General David Brahms. I
want to quote from that letter: ``Waterboarding is inhumane, it
is torture, and it's illegal.'' These were all Judge Advocates
General. They also quote the sitting Judge Advocates General of
the military services from our committee's hearing last year in
which these sitting generals unanimously and unambiguously
agree that waterboarding is inhumane, illegal, and in violation
of the law.
I'm afraid that when the administration doesn't declare
waterboarding as off limits, it undermines our moral authority
of the United States. We've seen the oppressive regimes around
the world who are saying that whether they waterboarded or
tortured would depend upon the circumstances, whether they
think they need to, and then they cite the United States. That
endangers American citizens and military personnel around the
world. It lowers the standards of human rights everywhere.
On a personal basis, I was at the World Economics Summit
last week. I heard from a number of countries who are friends
of ours, historically friends of ours, that wonder why we can't
just unequivocally say such things are wrong. I think my two
colleagues would agree that if an American were waterboarded
anywhere in the world, no Senator, no American would have to
know the circumstances or the justification for it. We would
condemn it. There would be a resolution passed by both bodies
unanimously to condemn it.
I think it's unfortunate. I realize you are acting within
the restraints of the administration, but I think it is
unfortunate, a reflection of our laws and our values, if the
Attorney General cannot say even that waterboarding of an
American is illegal. That's how far from our moorings we've
strayed.
Now, oversight helps make governments work better,
something that Senator Grassley, Republican from Iowa, has
said. Hearings like these are accountability moments. I think
that while we want accountability, we're short on it. The one
thing you should know and that many of us feel should have been
different, or more thorough answers, I think I can state that
every member of this committee wants the Justice Department to
work well. We want the Justice Department to be the best of any
such department in the world. We'll work with you. We may
disagree with you on some things, but we'll work with you to
help it become that.
Mr. Attorney General, you are free to say anything you'd
like. You actually get the last word here.
Attorney General Mukasey. Well, all I'll say by way of the
last word is that yesterday you and I had a conversation in
which I expressed the hope that whatever our disagreements
were, they would be such as they were the last time, that
enabled us to go out, shake hands, agree to work together and
proceed from there and actually work together and proceed from
there, and they have been. I am grateful to you and to the
members of this committee for that because it allows me to
continue to do my job and it allows us to work together. I
can't ask any more than that.
Chairman Leahy. I said I'll give you the last word. Let me
just add to what you said. As one who has been in, now, my 34th
year in the Senate, who looks at my earlier career as a
prosecutor as one of the highlights of my public life, I will
work with you on those things to make it better. I think both
you and I would agree that we need the best Department of
Justice, and when this President leaves, that he leaves the
Department of Justice in the best shape possible for the next
President, whomever that might be.
With that, we stand in recess.
[Whereupon, at 3:48 p.m. the hearing was adjourned.]
[GRAPHIC] [TIFF OMITTED] T2691.001
[GRAPHIC] [TIFF OMITTED] T2691.002
[GRAPHIC] [TIFF OMITTED] T2691.003
[GRAPHIC] [TIFF OMITTED] T2691.004
[GRAPHIC] [TIFF OMITTED] T2691.005
[GRAPHIC] [TIFF OMITTED] T2691.006
[GRAPHIC] [TIFF OMITTED] T2691.007
[GRAPHIC] [TIFF OMITTED] T2691.008
[GRAPHIC] [TIFF OMITTED] T2691.009
[GRAPHIC] [TIFF OMITTED] T2691.010
[GRAPHIC] [TIFF OMITTED] T2691.011
[GRAPHIC] [TIFF OMITTED] T2691.012
[GRAPHIC] [TIFF OMITTED] T2691.013
[GRAPHIC] [TIFF OMITTED] T2691.014
[GRAPHIC] [TIFF OMITTED] T2691.015
[GRAPHIC] [TIFF OMITTED] T2691.016
[GRAPHIC] [TIFF OMITTED] T2691.017
[GRAPHIC] [TIFF OMITTED] T2691.018
[GRAPHIC] [TIFF OMITTED] T2691.019
[GRAPHIC] [TIFF OMITTED] T2691.020
[GRAPHIC] [TIFF OMITTED] T2691.021
[GRAPHIC] [TIFF OMITTED] T2691.022
[GRAPHIC] [TIFF OMITTED] T2691.023
[GRAPHIC] [TIFF OMITTED] T2691.024
[GRAPHIC] [TIFF OMITTED] T2691.025
[GRAPHIC] [TIFF OMITTED] T2691.026
[GRAPHIC] [TIFF OMITTED] T2691.027
[GRAPHIC] [TIFF OMITTED] T2691.028
[GRAPHIC] [TIFF OMITTED] T2691.029
[GRAPHIC] [TIFF OMITTED] T2691.030
[GRAPHIC] [TIFF OMITTED] T2691.031
[GRAPHIC] [TIFF OMITTED] T2691.032
[GRAPHIC] [TIFF OMITTED] T2691.033
[GRAPHIC] [TIFF OMITTED] T2691.034
[GRAPHIC] [TIFF OMITTED] T2691.035
[GRAPHIC] [TIFF OMITTED] T2691.036
[GRAPHIC] [TIFF OMITTED] T2691.037
[GRAPHIC] [TIFF OMITTED] T2691.038
[GRAPHIC] [TIFF OMITTED] T2691.039
[GRAPHIC] [TIFF OMITTED] T2691.040
[GRAPHIC] [TIFF OMITTED] T2691.041
[GRAPHIC] [TIFF OMITTED] T2691.042
[GRAPHIC] [TIFF OMITTED] T2691.043
[GRAPHIC] [TIFF OMITTED] T2691.044
[GRAPHIC] [TIFF OMITTED] T2691.045
[GRAPHIC] [TIFF OMITTED] T2691.046
[GRAPHIC] [TIFF OMITTED] T2691.047
[GRAPHIC] [TIFF OMITTED] T2691.048
[GRAPHIC] [TIFF OMITTED] T2691.049
[GRAPHIC] [TIFF OMITTED] T2691.050
[GRAPHIC] [TIFF OMITTED] T2691.051
[GRAPHIC] [TIFF OMITTED] T2691.052
[GRAPHIC] [TIFF OMITTED] T2691.053
[GRAPHIC] [TIFF OMITTED] T2691.054
[GRAPHIC] [TIFF OMITTED] T2691.055
[GRAPHIC] [TIFF OMITTED] T2691.056
[GRAPHIC] [TIFF OMITTED] T2691.057
[GRAPHIC] [TIFF OMITTED] T2691.058
[GRAPHIC] [TIFF OMITTED] T2691.059
[GRAPHIC] [TIFF OMITTED] T2691.060
[GRAPHIC] [TIFF OMITTED] T2691.061
[GRAPHIC] [TIFF OMITTED] T2691.062
[GRAPHIC] [TIFF OMITTED] T2691.063
[GRAPHIC] [TIFF OMITTED] T2691.064
[GRAPHIC] [TIFF OMITTED] T2691.065
[GRAPHIC] [TIFF OMITTED] T2691.066
[GRAPHIC] [TIFF OMITTED] T2691.067
[GRAPHIC] [TIFF OMITTED] T2691.068
[GRAPHIC] [TIFF OMITTED] T2691.069
[GRAPHIC] [TIFF OMITTED] T2691.070
[GRAPHIC] [TIFF OMITTED] T2691.071
[GRAPHIC] [TIFF OMITTED] T2691.072
[GRAPHIC] [TIFF OMITTED] T2691.073
[GRAPHIC] [TIFF OMITTED] T2691.074
[GRAPHIC] [TIFF OMITTED] T2691.075
[GRAPHIC] [TIFF OMITTED] T2691.076
[GRAPHIC] [TIFF OMITTED] T2691.077
[GRAPHIC] [TIFF OMITTED] T2691.078
[GRAPHIC] [TIFF OMITTED] T2691.079
[GRAPHIC] [TIFF OMITTED] T2691.080
[GRAPHIC] [TIFF OMITTED] T2691.081
[GRAPHIC] [TIFF OMITTED] T2691.082
[GRAPHIC] [TIFF OMITTED] T2691.083
[GRAPHIC] [TIFF OMITTED] T2691.084
[GRAPHIC] [TIFF OMITTED] T2691.085
[GRAPHIC] [TIFF OMITTED] T2691.086
[GRAPHIC] [TIFF OMITTED] T2691.087
[GRAPHIC] [TIFF OMITTED] T2691.088
[GRAPHIC] [TIFF OMITTED] T2691.089
[GRAPHIC] [TIFF OMITTED] T2691.090
[GRAPHIC] [TIFF OMITTED] T2691.091
[GRAPHIC] [TIFF OMITTED] T2691.092
[GRAPHIC] [TIFF OMITTED] T2691.093
[GRAPHIC] [TIFF OMITTED] T2691.094
[GRAPHIC] [TIFF OMITTED] T2691.095
[GRAPHIC] [TIFF OMITTED] T2691.096
[GRAPHIC] [TIFF OMITTED] T2691.097
[GRAPHIC] [TIFF OMITTED] T2691.098
[GRAPHIC] [TIFF OMITTED] T2691.099
[GRAPHIC] [TIFF OMITTED] T2691.100
[GRAPHIC] [TIFF OMITTED] T2691.101
[GRAPHIC] [TIFF OMITTED] T2691.102
[GRAPHIC] [TIFF OMITTED] T2691.103
[GRAPHIC] [TIFF OMITTED] T2691.104
[GRAPHIC] [TIFF OMITTED] T2691.105
[GRAPHIC] [TIFF OMITTED] T2691.106
[GRAPHIC] [TIFF OMITTED] T2691.107
[GRAPHIC] [TIFF OMITTED] T2691.108
[GRAPHIC] [TIFF OMITTED] T2691.109
[GRAPHIC] [TIFF OMITTED] T2691.110
[GRAPHIC] [TIFF OMITTED] T2691.111
[GRAPHIC] [TIFF OMITTED] T2691.112
[GRAPHIC] [TIFF OMITTED] T2691.113
[GRAPHIC] [TIFF OMITTED] T2691.114
[GRAPHIC] [TIFF OMITTED] T2691.115
[GRAPHIC] [TIFF OMITTED] T2691.116
[GRAPHIC] [TIFF OMITTED] T2691.117
[GRAPHIC] [TIFF OMITTED] T2691.118
[GRAPHIC] [TIFF OMITTED] T2691.119
[GRAPHIC] [TIFF OMITTED] T2691.120
[GRAPHIC] [TIFF OMITTED] T2691.121
[GRAPHIC] [TIFF OMITTED] T2691.122
[GRAPHIC] [TIFF OMITTED] T2691.123
[GRAPHIC] [TIFF OMITTED] T2691.124
[GRAPHIC] [TIFF OMITTED] T2691.125
[GRAPHIC] [TIFF OMITTED] T2691.126
[GRAPHIC] [TIFF OMITTED] T2691.127
[GRAPHIC] [TIFF OMITTED] T2691.128
[GRAPHIC] [TIFF OMITTED] T2691.129
[GRAPHIC] [TIFF OMITTED] T2691.130
[GRAPHIC] [TIFF OMITTED] T2691.131
[GRAPHIC] [TIFF OMITTED] T2691.132
[GRAPHIC] [TIFF OMITTED] T2691.133
[GRAPHIC] [TIFF OMITTED] T2691.134
[GRAPHIC] [TIFF OMITTED] T2691.135
[GRAPHIC] [TIFF OMITTED] T2691.136
[GRAPHIC] [TIFF OMITTED] T2691.137
[GRAPHIC] [TIFF OMITTED] T2691.138
[GRAPHIC] [TIFF OMITTED] T2691.139
[GRAPHIC] [TIFF OMITTED] T2691.140
[GRAPHIC] [TIFF OMITTED] T2691.141
[GRAPHIC] [TIFF OMITTED] T2691.142
[GRAPHIC] [TIFF OMITTED] T2691.143
[GRAPHIC] [TIFF OMITTED] T2691.144
[GRAPHIC] [TIFF OMITTED] T2691.145
[GRAPHIC] [TIFF OMITTED] T2691.146
[GRAPHIC] [TIFF OMITTED] T2691.147
[GRAPHIC] [TIFF OMITTED] T2691.148
[GRAPHIC] [TIFF OMITTED] T2691.149
[GRAPHIC] [TIFF OMITTED] T2691.150
[GRAPHIC] [TIFF OMITTED] T2691.151
[GRAPHIC] [TIFF OMITTED] T2691.152
[GRAPHIC] [TIFF OMITTED] T2691.153
[GRAPHIC] [TIFF OMITTED] T2691.154
[GRAPHIC] [TIFF OMITTED] T2691.155
[GRAPHIC] [TIFF OMITTED] T2691.156
[GRAPHIC] [TIFF OMITTED] T2691.157
[GRAPHIC] [TIFF OMITTED] T2691.158
[GRAPHIC] [TIFF OMITTED] T2691.159
[GRAPHIC] [TIFF OMITTED] T2691.160
[GRAPHIC] [TIFF OMITTED] T2691.161
[GRAPHIC] [TIFF OMITTED] T2691.162
[GRAPHIC] [TIFF OMITTED] T2691.163
[GRAPHIC] [TIFF OMITTED] T2691.164
[GRAPHIC] [TIFF OMITTED] T2691.165
[GRAPHIC] [TIFF OMITTED] T2691.166
[GRAPHIC] [TIFF OMITTED] T2691.167
[GRAPHIC] [TIFF OMITTED] T2691.168
[GRAPHIC] [TIFF OMITTED] T2691.169
[GRAPHIC] [TIFF OMITTED] T2691.170
[GRAPHIC] [TIFF OMITTED] T2691.171
[GRAPHIC] [TIFF OMITTED] T2691.172
[GRAPHIC] [TIFF OMITTED] T2691.173
[GRAPHIC] [TIFF OMITTED] T2691.174
[GRAPHIC] [TIFF OMITTED] T2691.175
[GRAPHIC] [TIFF OMITTED] T2691.176
[GRAPHIC] [TIFF OMITTED] T2691.177
[GRAPHIC] [TIFF OMITTED] T2691.178
[GRAPHIC] [TIFF OMITTED] T2691.179
[GRAPHIC] [TIFF OMITTED] T2691.180
[GRAPHIC] [TIFF OMITTED] T2691.181
[GRAPHIC] [TIFF OMITTED] T2691.182
[GRAPHIC] [TIFF OMITTED] T2691.183
[GRAPHIC] [TIFF OMITTED] T2691.184
[GRAPHIC] [TIFF OMITTED] T2691.185
[GRAPHIC] [TIFF OMITTED] T2691.186
[GRAPHIC] [TIFF OMITTED] T2691.187
[GRAPHIC] [TIFF OMITTED] T2691.188
[GRAPHIC] [TIFF OMITTED] T2691.189
[GRAPHIC] [TIFF OMITTED] T2691.190
[GRAPHIC] [TIFF OMITTED] T2691.191
[GRAPHIC] [TIFF OMITTED] T2691.192
[GRAPHIC] [TIFF OMITTED] T2691.193
[GRAPHIC] [TIFF OMITTED] T2691.194
[GRAPHIC] [TIFF OMITTED] T2691.195
[GRAPHIC] [TIFF OMITTED] T2691.196
[GRAPHIC] [TIFF OMITTED] T2691.197
[GRAPHIC] [TIFF OMITTED] T2691.198
[GRAPHIC] [TIFF OMITTED] T2691.199
[GRAPHIC] [TIFF OMITTED] T2691.200
[GRAPHIC] [TIFF OMITTED] T2691.201
[GRAPHIC] [TIFF OMITTED] T2691.202
[GRAPHIC] [TIFF OMITTED] T2691.203
[GRAPHIC] [TIFF OMITTED] T2691.204
[GRAPHIC] [TIFF OMITTED] T2691.205
[GRAPHIC] [TIFF OMITTED] T2691.206
[GRAPHIC] [TIFF OMITTED] T2691.207
[GRAPHIC] [TIFF OMITTED] T2691.208
[GRAPHIC] [TIFF OMITTED] T2691.209
[GRAPHIC] [TIFF OMITTED] T2691.210
[GRAPHIC] [TIFF OMITTED] T2691.211
[GRAPHIC] [TIFF OMITTED] T2691.212
[GRAPHIC] [TIFF OMITTED] T2691.213
[GRAPHIC] [TIFF OMITTED] T2691.214
[GRAPHIC] [TIFF OMITTED] T2691.215
[GRAPHIC] [TIFF OMITTED] T2691.216
[GRAPHIC] [TIFF OMITTED] T2691.217
[GRAPHIC] [TIFF OMITTED] T2691.218
[GRAPHIC] [TIFF OMITTED] T2691.219
[GRAPHIC] [TIFF OMITTED] T2691.220
[GRAPHIC] [TIFF OMITTED] T2691.221
[GRAPHIC] [TIFF OMITTED] T2691.222
[GRAPHIC] [TIFF OMITTED] T2691.223
[GRAPHIC] [TIFF OMITTED] T2691.224
[GRAPHIC] [TIFF OMITTED] T2691.225
[GRAPHIC] [TIFF OMITTED] T2691.226
[GRAPHIC] [TIFF OMITTED] T2691.227
[GRAPHIC] [TIFF OMITTED] T2691.228
[GRAPHIC] [TIFF OMITTED] T2691.229
[GRAPHIC] [TIFF OMITTED] T2691.230
[GRAPHIC] [TIFF OMITTED] T2691.231
[GRAPHIC] [TIFF OMITTED] T2691.232
[GRAPHIC] [TIFF OMITTED] T2691.233
[GRAPHIC] [TIFF OMITTED] T2691.234
[GRAPHIC] [TIFF OMITTED] T2691.235
[GRAPHIC] [TIFF OMITTED] T2691.236
[GRAPHIC] [TIFF OMITTED] T2691.237
[GRAPHIC] [TIFF OMITTED] T2691.238
[GRAPHIC] [TIFF OMITTED] T2691.239
[GRAPHIC] [TIFF OMITTED] T2691.240
[GRAPHIC] [TIFF OMITTED] T2691.241
[GRAPHIC] [TIFF OMITTED] T2691.242
[GRAPHIC] [TIFF OMITTED] T2691.243
[GRAPHIC] [TIFF OMITTED] T2691.244
[GRAPHIC] [TIFF OMITTED] T2691.245
[GRAPHIC] [TIFF OMITTED] T2691.246
[GRAPHIC] [TIFF OMITTED] T2691.247
[GRAPHIC] [TIFF OMITTED] T2691.248
[GRAPHIC] [TIFF OMITTED] T2691.249
[GRAPHIC] [TIFF OMITTED] T2691.250
[GRAPHIC] [TIFF OMITTED] T2691.251
[GRAPHIC] [TIFF OMITTED] T2691.252
[GRAPHIC] [TIFF OMITTED] T2691.253
[GRAPHIC] [TIFF OMITTED] T2691.254
[GRAPHIC] [TIFF OMITTED] T2691.255
[GRAPHIC] [TIFF OMITTED] T2691.256
[GRAPHIC] [TIFF OMITTED] T2691.257
[GRAPHIC] [TIFF OMITTED] T2691.258
[GRAPHIC] [TIFF OMITTED] T2691.259
[GRAPHIC] [TIFF OMITTED] T2691.260
[GRAPHIC] [TIFF OMITTED] T2691.261
[GRAPHIC] [TIFF OMITTED] T2691.262
[GRAPHIC] [TIFF OMITTED] T2691.263
[GRAPHIC] [TIFF OMITTED] T2691.264
[GRAPHIC] [TIFF OMITTED] T2691.265
[GRAPHIC] [TIFF OMITTED] T2691.266
[GRAPHIC] [TIFF OMITTED] T2691.267
[GRAPHIC] [TIFF OMITTED] T2691.268
[GRAPHIC] [TIFF OMITTED] T2691.269
[GRAPHIC] [TIFF OMITTED] T2691.270
[GRAPHIC] [TIFF OMITTED] T2691.271
[GRAPHIC] [TIFF OMITTED] T2691.272
[GRAPHIC] [TIFF OMITTED] T2691.273
[GRAPHIC] [TIFF OMITTED] T2691.274
[GRAPHIC] [TIFF OMITTED] T2691.275
[GRAPHIC] [TIFF OMITTED] T2691.276
[GRAPHIC] [TIFF OMITTED] T2691.277
[GRAPHIC] [TIFF OMITTED] T2691.278