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

Interview

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SEN. SHELDON WHITEHOUSE (R-RI): Thank you, Mr. -- am I on? -- there we go. 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 law breaking currently going on, but the letter is unwilling to look back, as the 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. And 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, and you know the mission statement of the Department of Justice: "to seek just punishment for those guilty of unlawful behavior."

The famous decision of Burger versus the 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, and 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 the section is subject to the same penalties, other than the penalty of death, of the penalties proscribed for the offense.

So we have a statute on point. You are, I believe, the sole prosecuting authority for that statute, correct?

ATTY GEN. MUKASEY: I am --

SEN. WHITEHOUSE: The Department of Justice is?

ATTY GEN. MUKASEY: -- at the top of the Department of Justice, which is the sole prosecuting authority.

SEN. 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?

ATTY GEN. MUKASEY: First, let's talk about how many hats I wear. I wear one hat. It says 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.

SEN. WHITEHOUSE: All right. Well, let's talk about the two duties and the terms of one providing advice to the administration in the same way that a corporate counsel --

ATTY GEN. MUKASEY: When it comes --

SEN. WHITEHOUSE: -- provides to a corporation, and being an independent prosecutor whose job is to look at the criminal laws and enforce them.

ATTY GEN. 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 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.

SEN. WHITEHOUSE: Is that -- and otherwise, as long as you are --

ATTY GEN. MUKASEY: That's a -- that's a message that I'm not going to send.

SEN. WHITEHOUSE: The message you send otherwise is that "I was only following orders" is a fine response.

ATTY GEN. MUKASEY: It's not a fine response. It was a response at Nuremberg that was found unlawful, as we both know.

SEN. 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 (ineluctably ?)?

ATTY GEN. MUKASEY: No. It's "I had authorization, and let's take a look at the authorization," at the circumstances under which it was given, at what was done, at a whole wide range of variables that I don't have before me.

SEN. 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 -- (inaudible)?

ATTY GEN. 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.

SEN. 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 counsel 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?

ATTY GEN. MUKASEY: I don't know that that's what I've said. But the way that started was that 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.

SEN. 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?

ATTY GEN. MUKASEY: You've elided 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.

SEN. 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 principled distinction between these two.

ATTY GEN. MUKASEY: I think there's a principled distinction when the head of the CIA tells you that somebody destroyed tapes apparently without proper authorization, which is what he disclosed.

SEN. WHITEHOUSE: And so I don't see how that gets you -- I don't see how --

ATTY GEN. MUKASEY: And all that started was a preliminary inquiry. And a preliminary inquiry showed the possibility that a crime was committed, and then we started an investigation.

SEN. 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?

ATTY GEN. MUKASEY: No, because you're assuming what was on the tapes -- you're assuming that the interrogation was unlawful --

SEN. 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. And 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 I -- 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's a split standard there, and I'm trying to understand why.

ATTY GEN. MUKASEY: It seems to me that the -- since there is 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.

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SEN. LEAHY: Thank you. Senator Whitehouse, did you say you had one more question -- one more little question?

SEN. 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 whims 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 later time, and I appreciate very much the chairman's indulgence and I appreciate the attorney general's --

SEN. LEAHY: No, I think it's a very -- it's an area I'm quite interested in too. And I realize some of these -- we may have to discuss in a classified session, but we've read -- there's actually been books written on this. The disarray of the Office of Legal Counsel and the problems that it's caused all the way through the administration. The senator from Rhode Island raises a good question, and perhaps that's something we could meet privately, first, to talk about -- unless you wanted to say something here.

ATTY GEN. MUKASEY: I know that the -- (inaudible word) -- wisdom is that if you comment when there's no question, that you're putting your foot in your mouth.

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