Afternoon Session of a Hearing of the Senate Judiciary Committee - Oversight of the U.S. Department of Justice

Interview

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SEN. JOHN CORNYN (R-TX): 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 this -- 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 this -- 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've 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. And 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.

I wanted to alert you to that.

ATTY GEN. MUKASEY: I understand that you did, and I'm grateful for that. And I understand that these requests were often filed by people who are laypeople 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.

SEN. CORNYN: As a former judge myself, and as a former judge yourself, anything that can avoid litigation and resolve things informally I think would be an -- in an expeditious fashion, I bet you would agree with me that's a good thing.

ATTY GEN. MUKASEY: I would. Yes, sir.

SEN. CORNYN: Let me also address FISA reform, something that's very much on Congress' agenda. We -- 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 is a Texan killed in Iraq in May of 2007 during search operations for several U.S. soldiers who'd 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 the 15th, 2007. The title of that is "Wire Law Failed Lost GI."

What the story details is a 10-hour delay necessitated by a FISA application in a circumstance that perhaps would've not been necessary if FISA reform had been passed -- in other words, intercepting a foreign-to-foreign communication. And I just wanted 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's not just a hypothetical. It's something very human and very personal, and I wanted to raise that issue.

But you see -- do you continue to see that as a problem that cries out for resolution -- in other words, the 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? I mean, you --

ATTY GEN. 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. And we want to make sure that that's clear. We want to lower the burden on the government to -- in all its presentations to find -- and 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 -- 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.

And that's --

SEN. CORNYN: I agree, General Mukasey.

ATTY GEN. MUKASEY: -- (off mike) -- on the problem.

SEN. 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; some illusion to the ticking time bomb scenario. And 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 they -- 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?

ATTY GEN. MUKASEY: Well, 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've also said is that, yes, there are circumstances where waterboarding is clearly unlawful. What I have said is that, simply, that 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 playbook, nor am I going to call into question what people do or have done when it's not necessary to do so.

SEN. CORNYN: Thank you very much.

Thank you, Mr. Chairman.

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