Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the U.S.
Interview
Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the United States
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SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.
Several of our colleagues this morning have said a few words about Steven Bradbury, who is the interim or acting head of the Office of Legal Counsel. And I would just, without returning to yesterday's line of questioning, say that until it's clear in my mind why the investigation of Mr. Bradbury's conduct relative to the warrantless wiretap program by the Office of Professional Responsibility was not completed and was in fact preempted in an unprecedented way by the president refusing security clearances to the office of Professional Responsibility, I will continue to hold his nomination and believe that serious questions about his fitness to serve remain, in my personal opinion.
I'd like to ask you, Judge Mukasey -- we talked briefly yesterday about ongoing issues involving race in America. There is another issue which is troubling and is in the papers on a regular basis, and it's the issue of immigration. In my (town ?) I'm fortunate to represent the City of Chicago. The chief of police has said to me that they have made a conscious decision to give confidentiality to witnesses and victims when it comes to their immigration status, in the belief that this is the only way to encourage cooperation in the reduction of crime, particularly of violent crime. Other cities have made that same decision. Your city of New York, under Mayor Giuliani, cities like Minneapolis and Houston, have reached similar conclusions.
I'd like to ask you, since there's clearly a question to be raised here of policy, in that immigration laws are federal in nature and the decisions are being made at the state and local level to have confidentiality agreements -- which in the eyes of some suspend the enforcement of those federal laws by local agencies -- what is your position or opinion on these confidentiality agreements, or I should say confidentiality statutes?
MR. MUKASEY: I don't -- I didn't -- I wasn't aware that there were statutes. I thought these were simply matters of --
SEN. DURBIN: I think that -- I think you're right. More a matter of policy. You're right.
MR. MUKASEY: Wholly apart from that, the governance of every political subdivision is the responsibility of the executive in that subdivision. The mayor of a city, the governor of a state. And they have to answer to their constituents for the safety and for the welfare of their locality. And it seems to me they have to use their own good judgment as to what is necessary to protect that safety and welfare.
And they can't take a principle -- which is that we don't want to tolerate unlawful immigration, and we don't -- they can't take a principle like that and go over a cliff with it. They can't say, "We're going to let this town be as lawless as it has to be because we don't want to -- we are going to turn in anybody who comes in as a witness who is not properly here." We can't say that we're going to let children starve because their parents are not lawfully here. There has to be -- there is a reality to be dealt with. And they are the people who have to deal with it.
And I am very sympathetic to that and very much loath to second- guess them. And I won't second-guess them as attorney general. I may try to persuade an executive to adjust a policy one way or the other in a way that accommodates reasonable needs, but that's a very different thing from saying that you sacrifice the physical welfare of people in a particular jurisdiction because we have a principle here and illegal immigration is a hot-button issue and therefore everything else goes by the wayside. Can't say that.
SEN. DURBIN: Can I conclude or would you conclude from that statement that the primary responsibility for enforcement of immigration laws and policy is a federal responsibility?
MR. MUKASEY: Primary responsibility is a federal responsibility. Often you can't do that without the cooperation of local authorities. And I would seek it. But certainly it is principally the federal government's responsibility.
SEN. DURBIN: We spoke about the issue of race yesterday, and I thought your answers were consistent with my values and the values of most Americans in terms of trying to reduce the tension between white and African-Americans in -- when it comes to justice in America.
I'd like to ask you about a specific case that you were involved in, Jordan versus Lafevre. And this case involved a murder charge. A prosecutor struck multiple African-American jurors -- potential jurors. The state trial judge refused to allow the defense attorney to have a fair opportunity to challenge the striking of these African- American jurors, the so-called Batson challenge. You denied the defendant's habeas challenge, allowed the conviction to stand and were reversed by the appellate court. The appellate court said, "A court insufficiently protects the defendant's equal protection rights when in its haste to speed along the proceedings, it declares that a reason is rational without making the critical determination as to purposeful discrimination."
On reflection, do you feel the appellate court's observation was correct, and that you overlooked what could have been purposeful discrimination by the state in the selection of jurors?
MR. MUKASEY: The appellate court's observation was certainly correct. What I recall -- from what I recall of that case, and it's been a while since I looked at it, one of the elements in my consideration was giving deference to the judgment of the state court that made that decision in the first instance. The case came back to me; we had a hearing. We went through each of the jurors that were struck, each of the reasons that was given, and ultimately the Batson challenge was rejected; and that, I believe, was sustained on appeal. I don't actually recall whether it went up or not. I believe it did and it was sustained.
But I certainly agree that you have to give people an opportunity to make a record. And if I too hastily thought that somebody had been given an opportunity to make a record and that was not the case, then yes, I regret that.
SEN. DURBIN: We had questions yesterday about the issue of torture under the Geneva Conventions. The techniques which have been attributed to this administration involve painful stress positions, threatening detainees with dogs, forced nudity, waterboarding -- that is, simulated drowning -- and mock execution. When we had the judge advocates general testify, I asked point blank whether they believed that these techniques violated the Geneva Conventions. They said yes. And I asked if they felt, if those techniques were used against an American detainee, they would be violative of Geneva Conventions, and they answered in the affirmative. What is your opinion?
MR. MUKASEY: They -- I mean I'm certainly not in a position here to argue with a judge advocate general's view that they violate the Geneva Conventions, and that, whether used against us or against anybody else, that they would. That said, I think we have to also recognize that when we're talking about coercive methods of interrogation, this is not a matter of choosing pleasant alternatives over unpleasant alternatives, or good alternatives over bad alternatives. It's a choice among bad alternatives.
What the experience is of people in the Judge Advocate General's Corps, who are enormously well disciplined and very skilled, what that experience has been with captured soldiers, captured military people from enemies we fought in the past, may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person.
SEN. DURBIN: Well, I want to make sure I understand that response, because I think you may have created a division here in treatment, arguing that if these techniques were used in the past, before the current threat of terrorism, it would be a different circumstance under the Geneva Convention than it might be today. I want to make sure I don't draw the wrong conclusion from that previous answer. So if you'd clarify it for me, please.
MR. MUKASEY: (Pause.) I'm not sure how I can -- I mean, I'm sorry, I'm not sure I can clarify it.
SEN. DURBIN: Well, let me go back. I understood you to say that the judge advocates general, speaking about the Geneva Conventions and these specific methods of torture, may have been referring to previous times and previous conflicts.
And that this conflict and this challenge of terrorism may present a different set of challenges that might be viewed or interpreted differently under Geneva Conventions.
If that is not what you said, please clarify.
MR. MUKASEY: I'm not sufficiently familiar with interpretations of the Geneva Conventions to be offering views on what would or would not come within it or outside it. What I thought I was talking about is procedures that are acceptable to the military, that are authorized in the field manual, and that are -- and that represent the limit of what it is that the armed forces can do. There are other techniques that are, as I understand it, that need be used by -- with proper authorization -- people outside the military, and those are not covered in the field manual.
SEN. DURBIN: But I'm speaking the Geneva Conventions, and the Judge Advocate's General said the techniques that I described to you violated Common Article 3, and this is the baseline test that applies to everyone, not just soldiers. And I believe that the Supreme Court agreed with that conclusion in Hamdan.
Do you see that differently?
MR. MUKASEY: What part of Common Article 3 the Supreme Court found in Hamdan was applicable through -- I believe through the Universal Code of Military Justice, unless I'm confusing my cases. I can't sit here and recall precisely what part of Article 3 the Supreme Court found applicable. I thought they were talking about the need for a trial and for an opportunity for a -- for a detainee to get a hearing. I did not think that that concerned interrogation techniques.
SEN. DURBIN: Let me try to bring it to the bottom line because I want to make sure that if there is common ground, we find it; if not, that it's clear on the record.
I want to understand as to these interrogation techniques whether you believe that they would constitute torture and, therefore, could not be used against any detainee, military or otherwise, by the United States government.
MR. MUKASEY: I don't think that I can responsibly talk about any technique here because -- (pause) -- of the very -- I'm not going to discuss and I should not -- I'm sorry I can't discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that.
SEN. DURBIN: I -- this is not a congeniality contest. And I'm sorry that I've gone over, Mr. Chairman, but -- for instance, I just want to -- if I could make one last point on the issue of waterboarding, simulated drowning. The United States has long taken the position that this is a war crime.
In 1901, a U.S. Army major, Edwin Glenn, was sentenced to 10 years hard labor for waterboarding a captured insurgent in the Philippines. U.S. military commissions after World War II prosecuted Japanese troops for engaging in waterboarding. The torture statute makes it a crime to threaten someone with imminent death; waterboarding is a threat of imminent death.
I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding, whether the detainee is military or otherwise.
MR. MUKASEY: It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else.
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