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

Interview

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SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.

General Mukasey, I wanted to ask you a question or two.

Are you familiar with former deputy attorney general Jim Comey?

ATTY GEN. MUKASEY: Yes.

SEN. DURBIN: Do you have an opinion of him as attorney, individual?

ATTY GEN. MUKASEY: Yes.

I worked with him when he was United States attorney. I was the chief judge. He had occasion to be before me, both in his capacity as a lawyer and because there were administrative matters that the United States attorney has to deal with with the chief judge, which I then was for a period of time. I have since, since what put me here put me here, I have since had occasion to talk to him and to get his counsel on the Justice Department in general. He is a very sound, able person.

SEN. DURBIN: I take it from that you respect his judgment.

ATTY GEN. MUKASEY: I do.

SEN. DURBIN: So let me ask you about a man by the name of Steven Bradbury. When you first came before this committee, I asked you if you were familiar with Mr. Bradbury's background in the department. And you said that you were not and you would like to look into it.

You're probably familiar with the fact that he's been associated with some of the most controversial decisions by the Department of Justice, under Attorney General Gonzales, and has raised serious questions about memos that he was involved in, relating to the issues of interrogation, for example, and warrantless wiretapping, so much so that it's raised some serious questions for myself and many others, who serve in the Senate, about his fitness to serve in the Office of Legal Counsel.

When Mr. Comey was asked about some of these memoranda that Mr. Bradbury was involved in, he said that the Justice Department would be ashamed if the memos became public.

You said of Mr. Bradbury recently, quote, "Steve Bradbury is one of the finest lawyers I've ever met, and I've met a lot of very good ones. I enjoy working with him. I want to continue to work with him," end of quote.

I'd like to ask you: Have you reviewed all of Mr. Bradbury's opinions?

ATTY GEN. MUKASEY: I can't say that I've reviewed all of Mr. Bradbury's opinions. I've reviewed some of them.

You asked me whether I know Jim Comey, and I know him somewhat because of the dealings that I described and because of the contact that I described afterwards.

I also have come to know Steve Bradbury. I had some limited contact with him before my confirmation. I've worked with him more closely since I've been there. And to say that Jim Comey has good judgment is not to say that he is inevitable in every judgment he makes or that the judgment he makes about one document is a reflection -- a permanent scar on the reputation of the author of that document.

SEN. DURBIN: Well, let me ask you about two specific areas which you've been called on probably more than any others to comment on. The first is the area of interrogation techniques and torture, and the second relates to warrantless wiretapping, surveillance. I mean, these are areas of great concern to all of us and to you. Have you reviewed the opinions that he wrote on those two subjects?

ATTY GEN. MUKASEY: I've reviewed the -- principally the opinion that he wrote relating to the current program and reviewed it with the assistance of others outside OLC and arrived at a determination. And that determination was that that program is lawful.

SEN. DURBIN: Let me ask you this. Did you happen to review the opinion where he spoke of the so-called combined effects which authorize the CIA to use multiple abusive interrogation techniques in combination?

ATTY GEN. MUKASEY: If it's the opinion relating to the current program, then I necessarily reviewed it.

SEN. DURBIN: Now, according to The New York Times, then-Attorney General Alberto Gonzales approved this opinion over the objection of Deputy Attorney General Jim Comey, who said the Justice Department would be a ashamed if the memo became public. Did you have a chance to review that opinion?

ATTY GEN. MUKASEY: The opinion that I reviewed relating to the current program was dated in 2007. So I don't think the timing works out.

SEN. DURBIN: I don't think it does either.

But could I ask you, as I did in the previous hearing, if you would consider reviewing that opinion and perhaps get back to me if you are still of an opinion that he is a man of good judgment after you read that opinion which Mr. Comey said would be a source of shame to the department if made public?

ATTY GEN. MUKASEY: I will look at it again.

SEN. DURBIN: I would appreciate that very much.

I made that request of you during your confirmation hearing, that you review all of Mr. Bradbury's opinions, and it appears that you haven't had that opportunity. I hope you will soon. Mr. Bradbury has been a source of praise by some members of this committee, but others, myself included, have serious reservations not only about his continued service, but the fact that he appears to be serving in violation of the Vacancies Reform Act. He is defacto head of this agency when he, in fact, he has not been approved by the Senate.

So I would say, do you feel that he is the effective head of the Office of Legal Counsel at this point?

ATTY GEN. MUKASEY: I have dealt with him as the person -- as the principal person at that office.

SEN. DURBIN: Doesn't this violate the spirit of the law, the Vacancies Reform Act, since adequate time has lapsed since he was -- his nomination was returned by the Senate?

ATTY GEN. MUKASEY: I believe he has been renominated.

SEN. DURBIN: I believe he has too, but pending that, the fact is that he has taken over the head of a very -- or is the head -- effective head of one of the most important parts of your department and appears to be serving in violation of the law. I won't go any further with that line of questions, other than we may see one another again in this context. I will then ask you again if you've had a chance to read Mr. Bradbury's opinions, and I hope that you will. And I would suspect that his nomination will depend on your review of those opinions and your testimony on those.

ATTY GEN. MUKASEY: I think those opinions would be considered principally in light of whether they relate to things that are current or not, but I will review them.

SEN. DURBIN: Well, let me just close, Mr. Chairman -- and thank you -- to say that I don't think that's adequate. I think to ignore what happened before in the department relative to some opinions, which have been disavowed by this administration because they were so excessive, is to raise some serious questions about this man's fitness to continue in this capacity.

ATTY GEN. MUKASEY: And I would point out that his opinions were not -- his opinion was not that opinion.

SEN. DURBIN: Well, I will suggest to you that if this opinion was viewed as shameful by Mr. Comey, that it deserves your close scrutiny.

Thank you.

Thank you, Mr. Chairman.

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