Hearing of the Senate Committee on the Judiciary, Panel II - Nomination of Michael Mukasey to be Attorney General of the United States

Interview

Hearing of the Senate Committee on the Judiciary, Panel II - Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. RICHARD DURBIN (D-IL): Judge Mukasey, thank you for being here. Thanks for your service on the court and your willingness to have your name submitted for the attorney general's position. Thanks to your family and friends, some of whom have been friends of mine for a period of time; glad that they're with you today.

Several weeks ago, you were kind enough to come by my office, and we had a short time to have a conversation. You've referred several times here to your learning curve in this process, and so the questions I'm about to ask may be attributable -- your earlier responses may be attributable to learning curves, but I want to clarify and make sure I understand where you stand on several things we discussed in my office.

One of the things which we talked a lot about was this issue of torture, and you said at one point, quote, "There's a whole lot between pretty please and torture," and that you suggested that coercive technique short of torture are effective. I would like to ask you so that it's clear in my mind, will you now acknowledge that it is illegal and inconsistent with our values as a nation to subject detainees to cruel, inhuman and degrading treatment?

MR. MUKASEY: It is unlawful to subject detainees to cruel, inhuman and degrading treatment, there's no doubt, and I don't think that's inconsistent with what I said.

SEN. DURBIN: Then, we talked about the McCain statute, which I co-sponsored and had over 90 to 9 votes in the Senate, and I asked you about whether the McCain statute on torture would be controlling in certain circumstances. And you said at one point: There could be a point where the president's constitutional authority would override a statute.

I would like some clarification on that, if you would, please.

MR. MUKASEY: Okay. I don't recall the context in which I said that the president's authority could override a statute. I would be very surprised if that context were the McCain statute. There are some -- there is some authority that the president has that is inherent in the president and that he has willy-nilly. There are -- there have been statutes that Congress has passed that every president since the time they were passed has taken the view are unconstitutional in that they encroach on the president's power, the president's authority.

The most notable among them, at least to me, the one that comes to mind is the War Powers Resolution. We all know that it's there. We all know that every president since the time it was passed has taken the view that it is unconstitutional and will not be obeyed.

Mercifully we have never come to a test of that, and I hope we will never come to a test of that. What's happened is that each branch has understood that push can't come to shove on certain issues, that we have to try to work it out in the way people things out in a democratic society, such that not everybody gets everything they want. And sometimes both sides walk away saying, could have beat them. But we don't have to find out who could have beaten whom.

SEN. DURBIN: For the record, do you believe the McCain torture amendment or statute is an unconstitutional infringement on the power of the president?

MR. MUKASEY: I do not.

SEN. DURBIN: I also asked you about Guantanamo. You referred to it -- a colorful phrase. You referred to it as, quote, "a fright wig" used by critics of the administration, and defended Guantanamo on the grounds that detainees receive, quote, "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans." That's what you said when we met. What I heard in response to your questions from Senator Kohl is that that may not accurately characterize your feelings about Guantanamo.

MR. MUKASEY: My feelings about Guantanamo as a place, which I have not visited -- I admit I have not visited it but I have spoken to people who have. Is -- my feeling is pretty much what I told you in a rather pungent, conversational way. I don't think people are mistreated there.

That is not to say that the problem of indefinite detention of a large number of people has not become a problem for us. It is a problem for us. It's an ongoing problem, and we've got to get our hands around it and resolve it. And it's due, as I indicated before, in large measure to the fact that getting ownership of that problem is a difficult thing in government. I recognize that.

SEN. DURBIN: I suppose mistreatment is a matter of interpretation. If one is speaking of torture of the Guantanamo detainees, that is one category of mistreatment for sure. Detention without due process may be another category mistreatment that Senator Specter's addressed, along with Senator Leahy, on the issue of habeas corpus. Would you concede that holding these detainees without charges for years, and then in many cases releasing them without charges is a form of mistreatment?

MR. MUKASEY: What one regards conversationally as mistreatment or not, I think, is probably in the eye of the beholder. As -- under Hamdi, it is lawful. Hamdi said, as far as I know unequivocally, that it is lawful for the president to detain people, even Americans, captured on a field of battle indefinitely. That's not to say that as a matter of policy it's a wise thing to do, that it doesn't hurt us with allies on whom we rely for support in fighting the people we have to fight, and that it might not pay to carry forward a principle for the sake of carrying forward a principle when we wind up cutting our nose off to spite our face.

SEN. DURBIN: I won't go any further because I think your responses to Senator Kohl's questions were very clear, and I think that's a matter of record, your position on Guantanamo.

I'd like to ask you about the Office of Legal Counsel in the Department of Justice, currently being held by an interim appointment, Mr. Bradbury, who has been brought before this committee and pending before the Senate for some time now. I have a hold on his nomination because of his refusal to answer questions, to produce memos, even some most recently disclosed by The New York Times, involving some things that he said or had done in that capacity.

I would like to ask you, would you -- I might also add, one area that you're probably aware of -- the Office of Professional Responsibility initiated an investigation of -- into the office -- the Justice Department's offices relative to the NSA program, that, in an unprecedented move, President Bush personally denied security clearances to Justice Department investigators and blocked the investigation. Documents provided to the Senate Judiciary Committee suggest that internal investigation was looking into whether that office, under Mr. Bradbury, engaged in misconduct while he was the acting head.

I have sent a letter with Senators Kennedy and Feingold asking the president to allow the investigation to go forward, and yesterday sent another letter saying it's time to remove this interim appointment, because this man is going nowhere unless there is much more complete disclosure.

Do you agree that it's inappropriate -- it would be inappropriate for the Senate to confirm a Justice Department nominee who is under investigation by the Office of Professional Responsibility?

MR. MUKASEY: I don't know the investigation. I had not heard of the investigation by OPR to which you refer. I know there was an OIG investigation. I know of an OIG investigation with regard to national security letters and the conclusions that it drew. I was unaware of an OPR investigation.

SEN. DURBIN: I don't want to catch you by surprise, then. I'll send a follow-up set of questions to you. And one of the will be, specifically, if you're confirmed will you recommend to the president that the OPR investigation of the Justice Department's role in the NSA program be allowed to proceed?

MR. MUKASEY: That's not something I can answer in the abstract. I need to see what the investigation is about.

SEN. DURBIN: I understand that. I was just wondering --

MR. MUKASEY: I am aware from my own experience of how relatively easy it is to have an OPR investigation get under way because of some comment in an opinion or something of that sort.

SEN. DURBIN: Let me send you that in writing and allow you to reflect on it and take a look at it before you give a complete response.

MR. MUKASEY. Okay.

SEN. DURBIN: In fairness.

I have very few minutes, and I wish I had much more time for this particular question. As chief law enforcement officer of our nation, as attorney general, you'll have special responsibilities. One that continues to recur throughout your lifetime and mine, and even as recently as the last week or two, is the issue of race and justice in America. Clearly, we still have a major hurdle to overcome in establishing equality under the law. I'd like to ask you, if you were prepared -- what initiative would you take to try to bring some closure to this issue which continues to tear America apart.

MR. MUKASEY: I can't -- unless I indulge in a conceit that I don't really have -- entertain the view that we're going to achieve closure in my lifetime, or even in my tenure.

SEN. DURBIN: (Move toward ?).

MR. MUKASEY: I believe that the Civil Rights Division of the Justice Department -- and I was starting to say this to Senator Feinstein when our time ran out, and I'm glad you asked about it because now I get a chance to continue -- Civil Rights Division is part of a movement and a process that is nothing less than genius in our politics, and that is that a stain on our history can start to be lightened and, hopefully, at some point wiped out through the use of the law, rather than in the streets and with arms as it has been elsewhere.

And we have to make sure that that bit of genius is preserved.

I would make absolutely certain and will make absolutely certain the Civil Rights Division, which celebrated its 50th anniversary this year -- that people there understand that that's their mandate and that they don't forget it.

SEN. DURBIN: I might say that that is one division which many of us believe has very low morale at this point, for a variety of reasons.

And I share your feeling about the important mission that they have, and I certainly hope that you will dedicate yourself to restoring morale and giving them the tools and support they need to restore the reputation of that important division.

MR. MUKASEY: Just add just one thing. I -- in the course of preparations for these hearings, I was staying near the Justice Department and happened to run into on a couple of different days lawyers from the Civil Rights Division lining up to get their coffee as I was lining up to get mine. And they were energized. They were focused. They seemed to be very happy and pleased in their task. And I think they are very much characteristic of the people within that division, the people within the department. And those are the people who I think we're going to depend on.

SEN. DURBIN: Perhaps it's a hopeful view on their part of your nomination.

Thank you very much.

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