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. SHELDON WHITEHOUSE (D-RI): Just to finish that thought -- so is waterboarding constitutional?

MR. MUKASEY: I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. WHITEHOUSE: If waterboarding is constitutional as a massive hedge --

MR. MUKASEY: No, I said if it's torture -- I'm sorry. I said if it's torture.

SEN. WHITEHOUSE: If -- if it's torture, that's a massive hedge.

I mean, it either is or it isn't. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?

MR. MUKASEY: If it amounts to torture, it is not constitutional.

SEN. WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.

MR. MUKASEY: Sorry.

SEN. WHITEHOUSE: As you consider this, I'd like to offer you at least a thought that I'd ask you to consider. This comes from testimony that was brought before the Senate Intelligence Committee that is declassified. It comes from a military officer who's conducted interrogations, who was team chief during the Gulf War, who had all the services under his command, interrogating literally thousands of prisoners. He was an adviser to Special Operations task forces during Iraqi Freedom.

He said, I've had a chance to really look at the academic, theoretical side of interrogation but I'm steeped in the operational side. I asked him, from a point of view of intelligence-gathering effectiveness, would you, could you or should you go beyond the Army Field Manual, and the techniques that are authorized in the Army Field Manual, in order to obtain intelligence?

His answer: Senator, I thank you so much for that question because I've been waiting 20 years to answer it. That is, absolutely not. I am not at all limited by the Army Field Manual in terms of what I need to do to generate useful information. That's the key, accurate, useful information, not leading questions to force somebody to say what they think I want to hear, and the full spectrum of their knowledgeability, not answering only the questions I ask but developing what I call operational accord, a relationship that they see it's in their best interest -- under non-pressure, non-coercive circumstances that it would be in their best interest to answer these questions fully.

He gives an example, of critical intelligence gathered in a search for Scud sites in the Iraq War, and explains that he received it because the individual said, I'm so amazed at my treatment. I wanted, if I was going to be captured, to be captured by one of your allies, not by the Americans, because I was told you were animals. You've treated me like a gentleman; you've treated me with respect. You are clearly knowledgeable of my customs and my culture. I am more than happy to answer any questions that you have.

So I asked him to confirm this -- what you mean to say was that you don't see the constraints of the Army Field Manual -- the moral constraints, the legal constraints -- as in any way inhibiting the effectiveness of your examination techniques, that you could do everything you wanted to, that you missed for nothing because of those restrictions; is that what you intended to say?

The answer: That's precisely what I meant to say. I don't see those as limiting my ability to work -- the spirit or the letter of that guidance. My approach was what we called a relationship-based approach. I've never felt any necessity or operational requirement to bring physical, psychological or emotional pressure on a source to win their cooperation. so following the guidance in the field manual, I feel unconstrained in my ability to work in the paradigm I've taught for so many years, 22 years of 100 percent interrogation experience.

So then I asked him, why do other countries do this? And he said, that gets to the very heart of the matter, and it is this. There are two objectives that one can pursue in interrogation -- either winning cooperation or compliance. They seem very similar, but there are profound differences.

Compliance means to take action that is against your interest, that you don't support; it has nothing to do with intelligence. Cooperation is winning a source's willingness to provide useful information. What the Chinese were interested in, the Koreans, the North Vietnamese was maybe 5 percent intelligence, 95 percent compliance; meaning, creating propaganda. That's a whole different paradigm, and the approaches that they used, like sleep deprivation and torture, ultimately will get any one of us in this room to do things that we couldn't imagine today, but it doesn't necessarily mean our ability to provide useful information.

And he concluded later by saying: So I think the key point, sir, is: Are we trying to produce compliance, which is propaganda, or cooperation, which leads to intelligence? I hope as you're evaluating these techniques you will also consider the, I believe, widely held view of career professionals in the FBI, in the military, in the interrogation field who think that these techniques are not only wrong, but ineffective.

Two quick questions. We talked yesterday about the rules and regulations, the norms and the practices, the protocols and traditions of the department. I urged you to consider those. You said that you would do so, and you referred to a variety of people. I want to pin you down and ask you, sir, if you would pledge to undertake some formal process of review and evaluation of those internal protocols, norms and practices so that you get a report from experienced people on what needs to be repaired.

MR. MUKASEY: I'm going to pledge to undertake -- to review the practices. I am going to pledge to consult people both inside and outside the department in the course of that. Convening a formal process is something I can't commit to now. If it is necessary and if I find that the results of inquiries and consultations don't yield the satisfactory results, I will consider that.

SEN. WHITEHOUSE: Will you agree to keep me informed of your activities in this area?

MR. MUKASEY: I will.

SEN. WHITEHOUSE: Thank you.

Finally, in the event that you are sworn in as attorney general of the United States, do you believe that you'll be working for the people of the United States of America or the president of the United States of America?

MR. MUKASEY: I will be working for all the people of the United States of America, and I see no antithesis between that and working within the president's Cabinet. I am -- I'm here because I've been nominated by the president. If I'm confirmed, I will be a member of the president's Cabinet, and I will serve, as I believe the certificate says, at his pleasure. That said, my oath is to uphold the Constitution, and that's what I'm going to do.

SEN. WHITEHOUSE: There is a distinction that I believe your predecessor failed to appreciate between who has the appointing authority for a position and where the duties of that position run. Do you agree with that?

MR. MUKASEY: I don't want to sit here -- and I'm not going to sit here and criticize my predecessor. I have no such --

SEN. WHITEHOUSE: I didn't -- I'm sorry. I'll rephrase the question. Do you agree with that distinction?

MR. MUKASEY: I have no such confusion.

SEN. WHITEHOUSE: Very good. Okay.

Thank you. Thank you, Mr. Chairman.

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