[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




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                       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.]
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