Afternoon Session of a Hearing of the Senate Judiciary Committee - Oversight of the U.S. Department of Justice
Interview
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SEN. WHITEHOUSE: Thank you, Mr. Chairman.
Thank you, Attorney General. I guess I'm trying to sort out the process question related to the determination of whether waterboarding is torture.
In terms of your advisory responsibilities to the government, you've said you're not going to engage those because there is not a set of concrete facts or circumstances that necessitate a determination because you've disclosed to us that waterboarding is not part of the CIA's enhanced interrogation technique regime. That still leaves open this question whether under 2340A, which uses the term "torture" specifically in the statute, there are concrete facts and circumstances that would necessitate or justify an analysis towards that purpose.
Given that the concrete-facts-and-circumstances justification evaporates in terms of 2340A in that there -- arguably, whatever it is, it is, and you can go back and find it, it's as concrete as the past ever is -- I'm trying to determine, if that is taking place, the analysis; if you are waiting, as you suggested, for John Durham's investigation to look more into what happened and then it would kick off from that once the preliminary determination were made; or if there has been a policy determination made that because there has been a claim of authority there will be no analysis, there will be no investigation, there will be no determination; or some fourth category -- what is the play, the process for coming to this decision vis-a-vis 2340A?
ATTY GEN. MUKASEY: The process for coming to any determination under any criminal statute is that facts come to the attention of the department that warrant an investigation. As of now, so far as I'm aware, John Durham's is in into the destruction of the tapes. That may very well engage the question of what was on the tapes, if what was on the tapes was something that is barred by the torture statute. That is several removes.
SEN. WHITEHOUSE: Couldn't you and I but for the non-classified nature of this particular setting engage in a very concrete and factual discussion about subjectmatter that would at least give cause for inquiry?
ATTY GEN. MUKASEY: We could engage in a discussion. It would not be a concrete and factual discussion because we would be talking about if this, if that, if the other, and we would --
SEN. WHITEHOUSE: In a classified setting.
ATTY GEN. MUKASEY: In a classified setting. That's -- (off mike) -- talking about.
SEN. WHITEHOUSE: It may or may not be "if."
ATTY GEN. MUKASEY: I beg your pardon?
SEN. WHITEHOUSE: In a classified setting, it may or may not be an "if."
ATTY GEN. MUKASEY: I'm not entirely sure what that suggests.
SEN. WHITEHOUSE: Well, I'm trying to be careful not to step outside of the boundaries that I'm obliged to pursue, to honor here of not being -- not disclosing classified information. At the same time, I'm trying to get some more information because I don't think it's fair to say that nobody has any basis from anywhere. I mean just read The New York Times, read The Washington Post, read what people have said on television; there's been a former CIA official who has been on the airwaves. If that's not enough to at least open the first red flag as to whether as an inquiry should go forward, I don't know what on earth could be.
And if -- so that answer to me is just totally not credible. So then the question is, you know, where do we stand? Because I think anybody who even has a public view of what's going on would suggest that there's something that might at least merit the beginning of inquiry as to whether an investigation might be opened.
ATTY GEN. MUKASEY: All of that depends on whether certification was given, whether permission was given, and whether it was permissibly relied on. And it would not -- it should not turn on one person's current view of what the statute requires or doesn't require, because if it does, the message is it all changes --
SEN. WHITEHOUSE: But aren't there two questions here? There is no exemption under 2340A, depending on whether the conduct was authorized by a supervisory official or not. There is no Nuremberg defense built into this criminal statute.
So if you were to apply it, it would strike me that you would want to apply it not before an investigation has taken place but once an investigation had reached a point where you were able to say, "Okay, here's what we think took place, here is whether or not it's in violation, and here's the legal analysis as to whether or not mens rea is adequate, given the nature of the authorization."
But it strikes me that you're telling me that nothing in that process is taking place because the certification alone obviates any further inquiry, irrespective of how developed the facts are. And I'm just trying to get -- which is this? Is it the -- there aren't facts well developed? That doesn't seem credible. Is it because there's authorization, we're not going to look at this, no matter what? If that's your position, fine, but let's just say so and then I'll understand.
ATTY GEN. MUKASEY: That's not my position.
SEN. WHITEHOUSE: What is your position?
ATTY GEN. MUKASEY: My position is that there is an ongoing investigation, and that I'm not going to speculate on what might or might not have happened, particularly with regard to authorizations.
SEN. WHITEHOUSE: But the ongoing investigation, as far as we know, is only into the destruction of tapes. It has nothing to do with the underlying interrogation, unless you're telling me that that's the forum. Is that the forum in which this will get decided?
ATTY GEN. MUKASEY: That is in part dependent on what John Durham's investigation shows. (Pause.) And --
SEN. WHITEHOUSE: Well, let's hypothesize that a little further. If it shows that waterboarding and -- took place --
ATTY GEN. MUKASEY: Let's not hypothesize anything.
SEN. WHITEHOUSE: Well, there are only two choices. It's not going to take us a long time to discuss the alternatives. It either did or didn't.
ATTY GEN. MUKASEY: It's not a question of taking a long time. It's a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don't think that ought to be the message.
SEN. WHITEHOUSE: Well, as the American -- my light's just gone on.
If I may, I would like to thank you for the -- and applaud you for the re-erection of the fire wall between the Department of Justice and the White House.
I thought the manner in which it was done was excellent. And I'm sorry we seem to be at loggerheads again on this subject. But I didn't want to close by questioning without letting you know that in that area and many others, I appreciate and applaud the work you are doing at the Department of Justice.
ATTY GEN. MUKASEY: This is a good-faith exchange. And I'm not suggesting that if you hadn't said that, that it would -- you know, that there would somehow be a problem. I appreciate that you said it, but --
SEN. WHITEHOUSE: I also want to be fair.
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