[Senate Hearing 110-897] [From the U.S. Government Publishing Office] S. Hrg. 110-897 OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ JANUARY 30, 2008 __________ Serial No. J-110-70 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 52-691 WASHINGTON : 2009 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Michael O'Neill, Republican Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Grassley, Hon. Charles E., A U.S. Senator from the State of Iowa, prepared statement............................................. 279 Letter to Larry Thompson, Deputy Attorney General, Department of Justice................................................. 281 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement and closing statement..................... 312 letter, December 19, 2007.................................... 315 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 3 WITNESSES Mukasey, Michael B., Attorney General, Department of Justice, Washington, D.C................................................ 6 QUESTIONS AND ANSWERS Responses of Michael B. Mukasey to questions submitted by Senators Leahy, Specter, Kennedy, Biden, Kohl, Feingold, Schumer, Durbin, Grassley, Brownback and Coburn June 27, 2008................................................ 73 July 2, 2008................................................. 164 July 3, 2008................................................. 229 SUBMISSIONS FOR THE RECORD Fugh, John L., (Ret.) Major General, Guter, Don, (Ret.) Rear Admiral, Hutson, John D., (Ret.) Rear Admiral, and Brahms, David M., (Ret.) Brigadier General, USMC, letter............... 277 Kohn, Kohn & Colapinto, LLP, Washington, D.C., letter............ 298 Mukasey, Michael B., Attorney General, Department of Justice, Washington, D.C., statement.................................... 317 National Religious Campaign Against Torture, Linda Gustitus, President, and Rev. Richard Killmer, Executive Director, Washington, D.C., letter....................................... 342 U.S. Senate, Committe on Armed Services, Senator John McCain, Senator Lindsey Graham, and Senator John Warner, Washington, D.C., letter................................................... 343 Washington Post: November 4, 2007, article.................................... 345 White House, Mike McConnell, Director of National Intelligence, Washington, D.C., letter....................................... 348 OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE ---------- WEDNESDAY, JANUARY 30, 2008 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, Pursuant to notice, at 10:01 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Cornyn, Brownback, and Coburn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Before we even start, and before we start the clock on me, I would note again everybody is welcome to these hearings. We will not have any demonstrations either for or against any position I might take, any position the Attorney General might take, or any position that any member of this Committee might take. Also, I want everybody to be able to see and hear, and we will not expect anybody to be standing and blocking the view of anyone who is here. I just wanted to make that very clear because if there are such demonstrations, I will ask the police to remove anybody who is making a noisy demonstration. Good morning, Attorney General. Attorney General Mukasey. Good morning, Mr. Chairman. Chairman Leahy. We welcome Michael Mukasey back before us for our first oversight hearing with the new Attorney General. We will continue our work to restore the Department of Justice to its vital role of ensuring the fair and impartial administration of justice. I first came to the Senate 33 years ago, when the Nation and the Department of Justice were reeling from Watergate and the trust of the American people in their government had been shaken. The damage done over the last 7 years to our constitutional democracy and our civil liberties rivals the worst of those dark days. This President's administration has repeatedly ignored the checks and balances that had been wisely placed on executive power by the Founders. They were concerned that they not replace the tyranny of George III with an American king. Among the most disturbing aspects of these years has been the complicity of the Justice Department, which has provided cover for the worst of these practices during those 7 years. Its secret legal memoranda have sought to define torture down to meaninglessness. They have sought to excuse warrantless spying on Americans contrary to our laws. They have made what Jack Goldsmith, a conservative former head of the Office of Legal Counsel, has rightly called a ``legal mess'' of it all. This President and this administration have, through signing statements and self- centeredness, decided that they are above the law, that they can unilaterally decide what parts of what laws they are going to follow. And the costs have been enormous, to our core American ideals, to the rule of law, and to the principle that in America, no one--not even a President--is above the law. A little more than a year ago, Attorney General Gonzales sat in the chair now occupied by Attorney General Mukasey as we began our oversight efforts for the 110th Congress. And over the next 9 months, our efforts revealed a Department of Justice gone awry. The leadership crisis came more and more into view as Senator Specter and I led a bipartisan group of concerned Senators to consider the United States Attorney firing scandal, a confrontation over the legality of the administration's warrantless wiretapping program, the untoward political influence of the White House at the Department of Justice, and the secret legal memos excusing all manners of excess. This crisis of leadership has taken a heavy toll on the tradition of independence that has long guided the Justice Department and provided it with safe harbor from political interference. It shook the confidence of the American people. But through bipartisan efforts among those, both Republicans and Democrats, who care about Federal law enforcement and the Department of Justice, we joined together to press for accountability, and that resulted in a change in leadership at the Department. So today we continue the restoration of the Department through our oversight. And I would hope that the Attorney General will answer our questions and speak not as merely the legal representative of the President, but as the Attorney General for all Americans. I hope that he avoids the practice all too common in this administration and the old leadership at the Department of cloaking misguided policies under a veil of secrecy, leaving Congress, the courts, but especially the American people in the dark. As we begin the final year of the Bush-Cheney administration, we continue to face more questions and shifting answers on issues ranging from the destruction of White House e-mails required by law to be preserved--the law required them to be preserved, and yet they were destroyed--to questions about the CIA's destruction of videotapes of detainee interrogations, and then they did not tell the 9/11 Commission or Congress or the courts, or anybody else; and more demands for immunity and unaccountability among those in the administration. The White House continues to stonewall the legitimate needs for information by this Committee and others in the Congress. They even contemptuously refuse to appear when summoned by subpoena. The Bush-Cheney administration also created the unnecessary impasse we face today over the Foreign Intelligence Surveillance Act by breaking agreements--agreements that the administration itself made last summer with the congressional leaders. Instead of following through on its commitments and passing a bill that leaders in Congress and the administration agreed would protect both America's interests and the civil rights and liberties of individual Americans, they tried to ram through a bill without any checks and balances. Today we are going to get some indication whether the new Attorney General will help us restore checks and balances to our Government and recapture American ideals. Attorney General Mukasey, I certainly hope you will. We will learn whether we have begun a new chapter at the Department or whether we are just finishing the last one. And it is not enough to say that waterboarding is not currently authorized. Torture and illegality have no place in America, and we should not delay beginning the process of restoring America's role in the struggle for liberty and human dignity around the world. Tragically, this administration has so twisted America's role, law, and values that our own State Department, our military officers, and, apparently, even our top law enforcement officer, are now instructed by the White House not to say that waterboarding is torture and illegal. Never mind that waterboarding has been recognized as torture for the last 500 years. Never mind that President Teddy Roosevelt properly prosecuted American soldiers for this more than 100 years ago. Never mind that we prosecuted Japanese soldiers for waterboarding Americans during World War II. Never mind that this is the practice of repressive regimes around the world. That is not America. This session I have joined with Senators Kennedy and Specter to cosponsor legislation to rein in this administration's abuse of the ``state secrets'' defense, and I expect that will likewise be raised at this hearing along with torture, rendition, executive privilege, and other key matters. This Committee has a special stewardship role to protect our most cherished rights and liberties as Americans and to make sure that our fundamental freedoms are preserved for future generations. No one is more eager than I to see our new Attorney General succeed in restoring strong leadership and independence to the Department of Justice. So I hope we will take a step forward to work together to repair the damage inflicted on our Constitution and civil liberties during the time preceding his time as Attorney General. Senator Specter. STATEMENT OF SENATOR SPECTER, U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. We welcome you here today, Attorney General Mukasey, for the first oversight hearing. I note at the outset that you have brought a new tone to the Department of Justice, a very welcome new tone with good appointments such as a Deputy Attorney General and other key spots. We look forward to your administration of this very important Department to take it from the many problems it has had in the immediate past. Senator Leahy talks about the expansion of executive power, and I think that definitely has been the case. No one is above the law, but when the President institutes the Terrorist Surveillance Program, the question arises as to whether it is lawful or not. It clearly violates the Foreign Intelligence Surveillance Act, but the President has asserted broader constitutional authority under Article II. And no statute can change the constitutional authority of the President. Regrettably, the courts have not yet ruled on that important subject. And when we take up the issue of waterboarding--which by all initial indications will be a major subject here today-- your views are important, but there are many ramifications beyond your opinion as to whether it is legal or may be constitutionally imposed. The Senate considered this issue back on September 26th of 2006, and the Senate, on an amendment to ban waterboarding, voted 53-46 not to ban waterboarding. I was among the dissenters. I think that waterboarding ought to be banned as a generalization, and I think that waterboarding is torture. But that is not the end of the discussion. There has been considerable public discourse on whether torture may be justified under some exigent, extraordinary circumstances. Former President Clinton was asked on an NPR interview in September of 2006 whether the President needed the option to authorize torture. And he said, ``Speaking as someone who has been there"--the former President described a hypothetical, the extreme case of a top aide of al Qaeda who was planning an attack in 3 days, and said, ``You do not need a blanket advance approval for torture. We could draw a statute much more narrowly which would permit the President to make a finding in a case like I just outlined.'' The issue was taken up in a learned opinion by the Israeli Supreme Court, and the court said that in exigent circumstances there would be a defense for the use of torture. And it was amplified in a concurring opinion to this effect: ``The state should not be helpless from a legal perspective in those emergencies that merit being defined as a `ticking bomb,' and the state would be authorized to order the use of exceptional interrogation methods in those circumstances. Such an authority exists deriving from the basic obligation of a state to defend and protect and safeguard its citizens.'' The same view was expressed by Senator Schumer on June 4th of 2004. Similar views have been expressed by the academics, by former Deputy Attorney General Phil Heymann, who is now a Harvard professor, and by Harvard Professor Dershowitz. So that it is my view that beyond what you may say, Mr. Attorney General, the Congress ought to take up this subject. And I have discussed, preliminarily, with Senator Leahy, the possibility that we hold hearings on the subject. If Congress is going to pass on the question as to whether the CIA ought to be limited to the Army Field Manual, then we ought to draw the parameters on whether torture may be constitutionally used. It is a violation of international law, but this may well be another area where the President will seek to exercise Article II powers, saying that the statutes which prohibit torture do not apply in exigent circumstances. And we know that constitutional law is a balancing test. Freedom of speech, our most prized possession, is limited if there is a clear and present danger. Fourth Amendment search and seizure yields to exigent circumstances. So as Justice Jackson outlined in a famous opinion, Congress is well advised to draw the parameters to influence what the President may do under Article II powers. And it is a complex subject which I think requires elaborate consideration by this Committee in advance of Senate action. There are many other important subjects to take up, Mr. Attorney General: the reporter's privilege, attorney-client privilege, the question on the contempt citations outstanding as to certain executive officials. And just a word or two about the Foreign Intelligence Surveillance Act, a critical issue which is now pending on the administration's effort to give the telephone companies retroactive immunity. From all indications, the telephone companies have been good citizens, but I oppose retroactive immunity because it is possible to substitute the Government for the telephone companies and still not close down the courts. And that is by passing an amendment which Senator Whitehouse and I have offered, which would substitute the Government as a party defendant. The Government would not have the defense of governmental immunity, as the telephone companies do not, but would have the state secrets defense. Regrettably, congressional oversight has been ineffective on the expansion of executive power. When a request is made on the CIA tapes, we get resistance from the administration, and the response is, well, it is political what Congress is doing. But last week, when a Federal court made an order to produce the tapes, it will be complied with. Nobody can say the court is political. And just two more sentences, Mr. Chairman. The separation of power is fundamental to our Constitution, and I think it is a very bad precedent to close off the courts. I doubt there will be any verdicts in those telephone company cases, but the separation of powers will be badly undercut if Congress gives retroactive immunity to the telephone companies, especially as opposed to keeping the courts open and attaining more information. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Well, you get some indication, Mr. Attorney General, that there will probably be a few questions here today. Would you please stand and raise your right hand? Do you solemnly swear that the testimony you will give in this matter will be the truth, the whole truth, and nothing but the truth, so help you God? Attorney General Mukasey. I do. Chairman Leahy. Thank you. I believe, Mr. Attorney General, when we talked yesterday and again this morning, I mentioned that we would have some limitation on time in your opening statement. Of course, the whole statement will be part of the record, but I would ask you certainly to proceed as you wish and cover the issues you want. But note that the whole statement will be in the record. Attorney General Mukasey. I will try to get through it as quickly as I can. Chairman Leahy. Thank you. STATEMENT OF HON. MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC Attorney General Mukasey. Good morning, Chairman Leahy, Senator Specter, and members of the Committee. I thank you for the opportunity to testify today. My tenure at the Department of Justice began less than 3 months ago, and even in that short time, I have confirmed what I had hoped and expected to find, which was men and women who are talented, committed, and dedicated to fulfilling the Department's mission. As you know, Mr. Chairman, I am new to Washington, and my education in the ways of this city continues. I have tried to live up to the commitments that I have made to work with Congress and to keep Congress informed about the Department's activities and its policy positions where possible. There will be moments of disagreement, as there have been. There are policy initiatives that the Department supports that some members of this Committee vigorously oppose and some policy initiatives that members of this Committee support that the Department opposes. There also are situations where the interests of the executive branch and the legislature are in tension. That is not, as some people have argued, evidence of a broken or a flawed political system; it is part of the genius of the design our Constitution, which embodies a robust separation of powers. Although these tensions will never disappear, there are many areas of agreement where we can work together on behalf of our common clients, the American people. There is one area where I particularly need your help. As you know, many key positions in the Justice Department, including those of Deputy and Associate Attorney General--the No. 2 and three positions, respectively--are vacant. These positions, and others, are being filled by people of great talent and dedication serving in acting capacities. But the continued wait for Senate-confirmed officials creates a tentative atmosphere that is not in the interest of the Department or of the country. Mr. Chairman, I appreciate the steps that the Committee has taken to hold hearings for these nominees. I hope you will work to ensure that they and others are confirmed quickly so that the permanent leadership team is in place at the Justice Department. As this Committee is well aware, the clock is ticking on critical national security authorities. The PATRIOT Act, which--I am sorry, the Protect America Act, which gave the Government new authorities to conduct surveillance of intelligence targets overseas, will soon sunset. I urge you to pass legislation ensuring that our intelligence community retains the tools that it needs to protect the country. It must be legislation that enables our intelligence professionals to surveil targets overseas without individual court orders, and it must provide retroactive liability for companies-- retroactive liability protection for companies, I am sorry, who are believed to have helped our country in the wake of the September 11, 2001, terrorist attacks. The Senate Intelligence Committee's bipartisan bill is not perfect, but it is a fundamentally sound proposal that would put critical surveillance authorities on a long-term institutional footing and would help ensure that we continue to obtain assistance from third parties that is vital to our national security efforts. I hope Congress will act quickly to pass the legislation that our Nation needs to modernize our national security surveillance laws. I am reminded each day in my morning briefings that the protection of the American people from the threat of international terrorism is and must remain the Justice Department's top priority. The Department continues to make progress in other key areas as well, from protecting the civil rights of all people to preventing violent crime and public corruption, to stemming illegal immigration, and I would be happy to discuss each of these subjects in detail with you today. Let me turn to an issue that I know is of great importance to several members of this Committee in which interest has already been expressed. Mr. Chairman, as you noted in a letter that you sent to me late last week, I committed at my confirmation hearing to review the current program used by the CIA to interrogate high- value al Qaeda terrorists and a legal analysis concerning that program. I have kept my commitment to the Committee. I have carefully reviewed the limited set of methods that are currently authorized for use in the CIA program, and I have concluded that they are lawful. I am aware that you and other members of the Committee have asked specifically that I address the legality of waterboarding. I sought and I received authorization to disclose publicly, however, that waterboarding is not among the techniques currently authorized for use in the CIA program. In that respect, passing on its legality is beyond the scope of the commitment that I made to this Committee. Waterboarding is not and may not be currently used. Whether or not waterboarding is something that will be authorized in the future is not for me to decide, certainly not for me alone. But I can tell you what it would take for waterboarding to be added to the CIA program: First, the CIA Director would have to request its authorization. Second, he would have to ask me or any successor of mine if its use would be lawful, taking into account the particular facts and circumstances at issue, including how and why it is to be used, the limits of its use, and the safeguards that are in place for its use. And, third, the issue would have to go to the President. Those steps may never be taken, but if they are, I commit to you today that this Committee will be notified of the fact in the same manner as the Intelligence Committees. Given that waterboarding is not part of the current program and may never be added to the current program, I do not think it would be appropriate for me to pass definitive judgment on the technique's legality. I understand fully that you and other members of the Committee may disagree with that decision. And I also appreciate the public interest in this issue and the sincerity and the strength of the views that you and your colleagues have expressed. But as I explained during the confirmation process, I do not believe that it is advisable to address difficult legal questions in the absence of actual facts and circumstances. That this issue has generated such intense public interest and debate is no reason to ignore that principle. In fact, it is all the more reason to follow it. The principle that one should refrain from addressing difficult legal questions in the absence of concrete facts and circumstances has even more force in this context. That is because any answer that I could give could have the effect of articulating publicly and to our adversaries the limits and the contours of generally worded laws that define the limits of a highly classified interrogation program. Indeed, I understand that a number of Senators articulated that very concern in the fall of 2006 when they defeated an amendment that would have expressly prohibited waterboarding. If this were an easy question, I would not be reluctant to offer my views on this subject, but with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit waterboarding's use, but other circumstances would present a far closer question. Reasonable can disagree and have disagreed about these matters. That is not surprising. They involve application of generally worded legal provisions to complex factual situations in an area of highest national interest. It is precisely because the issue is so important and the question so difficult that I as Attorney General should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today and may never present themselves in the future. I understand that I will be asked questions about this topic today. I will answer those questions to the best of my ability. But I will answer them within the limits that I have described. I recognize that those limits may make my task today more difficult for me personally. But it is my job as Attorney General to do what I believe the law requires and what is best for the country, not what makes my life easier. Despite our disagreement on this issue, I hope that the Committee will respect my judgment on this matter, and I hope and expect that we will find common ground on many other matters of great importance to this Committee and to the country, including, most importantly, our shared belief in the important mission of the Department of Justice and the great work of its employees. Mr. Chairman, members of the Committee, I look forward to your questions. Chairman Leahy. Well, thank you. Thank you, Mr. Attorney General, and thank you for stressing that issue. As you have suggested, you know you will be asked questions on it, and let me begin. We had a recent interview in the New Yorker, and the Director of National Intelligence Mike McConnell seemed to recognize the hypocrisy of the position that whether waterboarding is torture depends on the circumstances. He was asked if waterboarding would be torture if done to him. He said yes. Just weeks ago, the former Secretary for Homeland Security Tom Ridge stated it even more clearly: ``There is just no doubt in my mind under any set of rules. Waterboarding is torture.'' I give that as a preamble to my question. You have those remarks by current and former Bush administration officials who were responsible for protecting America from terrorism. Do you agree with them--and with me, for that matter--that waterboarding an American citizen anywhere in the world is torture and illegal? Waterboarding an American citizen anywhere in the world is illegal and torture? Attorney General Mukasey. Senator, without going into detail about what they said, I understood what they said to have expressed their personal points of view. The one thing that separates me from them is that I am the Attorney General and they are not, that when I pronounce on the reach of general legal principles, that is taken as a statement of how far those principles-- Chairman Leahy. So you disagree with them? Attorney General Mukasey. They expressed their personal view. Chairman Leahy. Well, Secretary Ridge was expressing a view he had when he was head of Homeland Security. He considered waterboarding an American to be torture. You are not willing to state that as unequivocally as he did for the reasons you have stated. Is that correct? Attorney General Mukasey. I don't know what underlay his logic, and I don't know that it was described in his statement. I know what my function is and what my office is now, and I know that if I address a difficult legal question without actually having concrete and actual circumstances before me, two things can result: One is that people who are hostile to us can look to that as an authoritative statement of what--how this country applies its laws and how it will continue to apply its laws. Chairman Leahy. Well, it is interesting. You have Ridge saying it would be torture and McConnell saying it would be torture. Then we have our State Department equivocating on what they would say if an American was picked up abroad and subjected to this or if any of our military were picked up and subjected to this. I think the failure to say something probably puts some of our people in more danger than not. But I understand your answer, and I am sure you understand my disagreement with it. Attorney General Mukasey. One point that you made about our military, our military is not subjected to any danger at all and shouldn't be subjected to any danger at all by anything that I have said or, indeed, that they have said. Our military fights in uniform, follows a recognized chain of command, doesn't target civilians, and is entitled to and should receive the protections of the Geneva Conventions, just as we-- Chairman Leahy. I understand that. Attorney General Mukasey.--protections to the-- Chairman Leahy. I understand that, Mr. Attorney General. I am talking about-- Attorney General Mukasey.--troops that we capture. Chairman Leahy. I am talking about what the State Department said when they wouldn't--when they were unwilling to state unequivocally that in a situation like that it would be torture. And I am afraid this may, as some of the military people have said, this may put their people in more danger. Let me ask you, because there are going to be others asking about this waterboarding, you mentioned FISA and the importance of it, the Foreign Intelligence Surveillance Act. A recent audit by the Department of Justice Inspector General found that the FBI repeatedly failed to pay its telephone bills, the failure resulting in the telecommunication companies cutting off wiretaps, including FISA wiretaps, of alleged terrorists. Over half of the nearly thousand payments studied were not done in time. The IG said this resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, including at least one case of a FISA wiretap. Now, you and others from the administration have spoken repeatedly about how critical FISA surveillance is to our national security. I agree with you. I agree with the administration on that. So if it is that important to our national security, how did we screw up and not pay the bill and have it get cut off? I mean, you cannot have on the one hand the President lecturing the Congress saying we have got to have this immediately and his own administration does not pay the bill so it gets cut off. Is there a disconnect--no pun intended--here? Attorney General Mukasey. There is literally a disconnect. As I understand it, that resulted from a failure to have in place a mechanism for oversight, which, as I understand it, has since been put in place, so as to make sure not simply that bills get paid--that is pretty basic--but that proper procedures are followed. Chairman Leahy. Well, if they were cutting these off because they were not paid, what payments were made to these telecom companies to compensate for their participation in the surveillance efforts during the 5 years prior to it coming under FISA? Attorney General Mukasey. I do not know. Chairman Leahy. Can you get that answer for us? Attorney General Mukasey. If it is--if that subject itself is not classified, I can get the answer. Whether a company did or did not participate, as I understand it, is itself classified information. So that whether sums can be computed and presented in a way that does not betray that is something that I think would have to be worked out and then I would have to look at it, and I will look at it. Chairman Leahy. I know you are looking into these tapes, the CIA tapes of waterboarding that were destroyed. Are you looking into the question of the destruction or are you looking into the question of the conduct that was shown on the tapes? Attorney General Mukasey. Actually, I am not looking into it. I appointed an experienced prosecutor to act as-- Chairman Leahy. Well, Justice, by ``you,'' I mean the Justice Department has opened a formal investigation into whether destroying those tapes was a crime. Is that-- investigators from the U.S. Attorney's Office, are they also going to look into the fact that what was on it, whether that was a crime or not? Attorney General Mukasey. That investigation is going to go step by step, fact by fact, witness by witness, the same way that any other investigation goes. If it leads to showing motive, then it leads to showing motive, and I am sure that will be explored, if it has to be. But the person who controls that is the prosecutor, who is very able and who has able assistants and an experienced FBI agent who is providing the investigative-- Chairman Leahy. Well, we will be talking with him. My last question, I have been--we read in the paper this morning that you were in line to receive a monitoring contract in connection with the diversion of a corporate criminal case, probably indicating again the sacrifice you have made financially to take this job. But some of these contracts have concerned me. There is one worth between $28 million and $52 million that the New Jersey U.S. Attorney Christopher Christie directed to the firm of former Attorney General John Ashcroft. No public notice, no bidding. And I have sent you a letter on that. I am waiting for an answer regarding that use and award. How did you come to be considered in this? I realize not the one that we are talking about with the former Attorney General, but how did you get considered? Attorney General Mukasey. The short answer, I was--I believe I was proposed initially by the company. That process took a very long time, and a funny thing--I did not actually read this morning's news article, although I was told that it was going to be forthcoming. I learned when I visited the Fraud Section, which was doing the selection, that it had not been completed at the time that I was nominated--I would like to think that--and that it wasn't the fact that I had lost out and somebody else actually got it. But I was under consideration. That said, the Justice Department has been looking at the phenomenon of monitorships because they have increased as prosecutions of corporations have increased, and deferred prosecution agreements or non-prosecution agreements have become more prevalent to assure that whatever happened is rooted out, people are prosecuted, and at the same time corporations are not destroyed as a result. That often includes the use of monitors. And we were aware of that, and we were taking a look at it to see whether we needed standards, whether standards could be formulated in a way that could be applied across the board or in distinct situations. There are monitors appointed in corporate prosecutions. There are monitors appointed when labor unions are found to have been dishonest. There are monitors appointed when civil rights violations are found to occur to make sure that they don't recur. So there are various situations. So as far as it being a no-bid contract, I think it bears emphasis that we are not talking here about public money. The money came from or is to come from the corporation, not from the Government. But, yes, we are looking at the phenomenon. Yes, we are going to see whether we ought to have standards and whether there ought to be, in any event, a report to the Department every time-- Chairman Leahy. Can you let us know? Attorney General Mukasey. I will Chairman Leahy. Thank you. Senator Specter. Senator Specter. Thank you, Mr. Chairman. Attorney General Mukasey, we have seen the expansion of assertions of Presidential authority under Article II, illustrated, as I said earlier, by his violating the Foreign Intelligence Surveillance Act, saying that he had Article II powers as Commander-in-Chief. We have seen the President disregard the National Security Act of 1947, which mandates telling the Intelligence Committees of both Houses when he undertakes a program like the Terrorist Surveillance Program. And the question comes down to whether the President may assert Article II power to violate the U.S. statute prohibiting torture and to act at variance with the Geneva Convention to protect America. I am going to read you a judgment by former Deputy Attorney General Phillip Heymann, now a Harvard professor, in a book he wrote to this effect: ``For the extremely rare case of an immediate threat to U.S. lives, unavoidable in any other way, we would allow the President to personally authorize an exception to the U.S. obligation under the Convention Against Torture and the U.S. Constitution not to engage in cruel, inhuman, or degrading treatment short of torture, so long as the decision by the President is based on written findings documenting his reasons and is promptly submitted to the appropriate congressional committees.'' My question to you is that under the standard which former Deputy Attorney General Heymann articulates, is there a legitimate argument that the President has Article II powers to undertake such conduct? Attorney General Mukasey. There are a number of concepts in your question, including whether he has authority to undertake torture. Torture, as you know, is now unlawful under American law. I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids. Senator Specter. Well, he did just that in violating the Foreign Intelligence Surveillance Act. He did just that in disregarding the express mandate of the National Security Act to notify the Intelligence Committees. Didn't he? Attorney General Mukasey. I think we are now in a situation where both of those issues have been brought within statutes, and that is the procedure going forward. Senator Specter. That is not the point. The point is that he acted in violation of statutes. Didn't he? Attorney General Mukasey. I don't know whether he acted in violation of statutes. Senator Specter. Well, didn't he act in violation of the Foreign Intelligence Surveillance Act? It expressly mandates you have to go to a court to get an order for a wiretapping. There is really no dispute about that, is there? Attorney General Mukasey. It required an order with regard to wire communications when that was a surrogate for foreign communications--for domestic communications. When foreign communications became something that traveled by wire-- Senator Specter. I am not talking about foreign communications. I am talking about wiretapping U.S. citizens in the United States. The Terrorist Surveillance Program undertook to do that. Well, I am not getting very far there. Let me move on to the foreign--what we are currently debating on retroactive immunity for the telephone companies. Senator Leahy and I wrote to you on December 10th asking you for information about the destruction of CIA tapes, and we got back a letter very promptly saying that, ``I will not provide information in response to your letter.'' A pretty flat refusal. And the reason here is because it involves pending matters. Well, I am not going to go into our prior discussions of what I thought was a commitment from you under the legal authority for this Committee to go into pending matters. And you say here your policy is based in part in avoiding any perception that our law enforcement decisions are subject to political influence. It is hard for me to say how a letter from Senator Leahy and myself constitutes political influence. But we now find last week that Judge Kennedy in the district court here in Washington has issued an order concerning information about the destruction of the tapes. Do you intend to comply with the judge's request? Attorney General Mukasey. I have not seen the order. I don't know whether it is subject to appeal. I do know that the considerations underlying a declination to provide Congress with information relating to the destruction of tapes is not based--is certainly no absolute and is not a ``never'' issue. It is based on the fact that if-- Senator Specter. Well, you say it is not ``never,'' but it is certainly not now. But let me move on to the central point about the amendment which Senator Whitehouse and I have offered, which seeks middle ground. It seeks to enable the Government to continue to get whatever information there are from the telephone companies by substituting the Government as a party defendant in the same posture--no governmental immunity defense. State secrets, yes. I use the illustration of the CIA tapes because the congressional oversight has been so ineffective, notwithstanding Herculean efforts for the last 3 years, during my chairmanship and the last year under Senator Leahy's chairmanship. But the courts provide a balance, separation of powers, Rasul, the only effective way of dealing with what is argued to be executive excesses is through the courts. Now, the amendment which Senator Whitehouse and I have offered would enable the Government to continue getting the information, but it would not shut out the plaintiffs, would not close down the courts. What is wrong with that as an accommodation, Mr. Attorney General? Attorney General Mukasey. I think what is wrong with it is that it would continue to make the conduct of the companies front and center the issue in the case. The only thing it would substitute is who pays in the event of a finding of liability. Senator Specter. Well, why shouldn't that conduct be front and center? Why shouldn't it be subject to a challenge of an unlawful invasion of privacy? Why should the courts be foreclosed from making that decision? When this Committee under my chairmanship tried to get the records of the telephone companies, the Vice President, Vice President Cheney, went behind my back, contacted the members of the Committee, Republican side, never even saw me, first or last. What is wrong with having that issue front and center and having a judicial inquiry and a judicial determination since this Committee cannot get that information? Attorney General Mukasey. What is wrong with it is two things. First of all, it puts--when I say it puts their behavior front and center, what I mean is it puts means and methods in the courts for everybody to examine and for people to become aware of, people who shouldn't become aware of what the means and methods are. Second, it casts in doubt the question of whether they acted in good faith or not in responding, as some of them may have, to a request that they had every reason to believe was made in good faith, that they helped the Government in the wake of September 11. And it becomes a lesson not only to them but to others later on that they can't trust that kind of inquiry, that they are obligated to push back whenever they can--and they always can--in order to guard against the possibility that somebody might later question their judgment. That is a dangerous thing because it could embroil us constantly in litigation with people we want to help us. Those companies know how technology is going to develop. We don't. We don't just need their cooperation that can be forced. We can force them to help us. We need their willing cooperation in helping us going forward with a developing technology that is developed faster and faster and faster. We are going to sacrifice that if we are litigating the propriety of their response to a request that has been found to have been reasonable and has been found to have been in good faith. And, again, it is a limited-- Senator Specter. Mr. Chairman, we will continue this debate on the Senate floor, but I think there is a much greater danger in having the Congress come bail out the administration with retroactive liability for future precedents contrasted with treating the telephone companies fairly by substituting the Government as a party defendant, which indemnifies, in effect, and eliminates the risk to them. Future people will know that we will act reasonably, but we won't give blanket immunity, carte blanche bailout. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Senator Kennedy. Senator Kennedy. Thank you. Thank you very much, Mr. Chairman. General Mukasey, I want to at the outset commend you for taking a number of positive steps to investigate the destruction of the CIA interrogation programs, including launching a full-scale criminal investigation, moving the investigation out of Main Justice; accepting the recusal of the Eastern District of Virginia's U.S. Attorney's Office; appointing John Durham, a seasoned and respected prosecutor, making the FBI the lead investigative agency. Each of these steps shows a sensitivity to potential conflicts of interest and a desire for a meaningful investigation. I am troubled you decided not to make Mr. Durham an Independent Counsel and ensure against even the appearance of impropriety. I hope to have an opportunity to return to this subject later on, but I want to focus on two issues in the time that I have, and I will submit some other questions. One is on the waterboarding, and the other is about the Civil Rights Division and voting that I am very much concerned about. In the issue, as you know, waterboarding has become the worldwide symbol for America's debate over the torture, and it became the centerpiece of your confirmation hearing after you refused to take a position whether it is lawful. In fact, even though you claim to be opposed to torture, you refuse to say anything whatever on the crucial questions of what constitutes torture and who gets to decide the issue. It is like saying that you are opposed to stealing but not quite sure whether bank robbery would qualify. So the courts and military tribunals have consistently agreed that waterboarding is an unlawful act of torture, but you refuse to say so. And then in a letter to the Committee sent last night, you once again refused to state the obvious, that waterboarding has been and continues to be an unlawful act of torture. Your letter told us that the CIA does not currently use waterboarding, but that fact had already been disclosed. What your letter completely ignored is the fact that the CIA did use waterboarding and no one is being held accountable. In your letter, you would not even commit to refuse to bring waterboarding back should the CIA want to do so. You would not take waterboarding off the table. Your letter also ignored the fact that the CIA continues to use stress positions, extreme sleep deprivation, and other techniques that are every bit as abusive as waterboarding, techniques that our own Department of Defense has rejected as illegal, immoral, ineffective, and damaging to America's global standing and the safety of our own servicemen and -women overseas. So I will not even bother to ask you whether waterboarding counts as torture under our laws because I know from your letter that we will not get a straight answer. So let me ask you this: Would waterboarding be torture if it was done to you? Attorney General Mukasey. I would feel that it was. There are numerous--I remember studying Latin in school, and one of the people I studied was Cicero, and Cicero used to, when he made speeches, would list all the things he was going to pass over without mentioning them, and then he was pass over without mentioning them, and a lot of that is in your question. You say I am going to pass by this and not ask you about it and pass by that and not ask about it. There are numerous things that I would differ with. You say that waterboarding is obviously torture, and you use the example of taking something--bank robbery obviously being stealing. That assumes, of course, the answer to the question, which is that waterboarding is, in fact, torture just the same way that bank robbery is, in fact, stealing. I think there are numerous other things that I would argue with. I simply point out that this is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed, and have differed within this chamber. During the debate on the Military Commissions Act when some people thought that it was unnecessary, some people thought that it obviously barred waterboarding, other people thought that it was so broadly worded that it would allow anything, and there were expressions on both sides. I should not go into, because of the office that I have, the detailed way in which the Department would apply general language to a particular situation. Notably, when I am presented only with a question that tells me only part of what I would be asked to rule on, if I were ever asked to rule on-- Senator Kennedy. Well, as you know, the Director of National Intelligence, Admiral McConnell, stated, ``If I had water draining in my nose, oh, God, I just can't imagine how painful. Whether it is torture by anybody else's definition, for me waterboarding would be torture. Now, you say facts and circumstances. Let me ask you, under what facts and circumstances exactly would it be lawful to waterboard a prisoner? Attorney General Mukasey. For me to answer that question would be for me to do precisely what I said I shouldn't do because I would be, No. 1, imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities. Those eventualities may never occur. I would also be telling people in the field, when I am not faced with a particular situation, what they have to refrain from or not refrain from in a situation that is not performing and in situations that they may find analogous. I shouldn't do either one of those. Senator Kennedy. Well, let me ask then finally, are there any interrogation techniques that you would find to be illegal, fundamentally illegal? Attorney General Mukasey. There are statutes that describe specifically what we may not do. We may not maim. We may not rape. There is a whole list of specifically barred techniques. Senator Kennedy. But waterboarding isn't on that list? Attorney General Mukasey. It is not. Senator Kennedy. OK. Let me go to another issue. It has been reported that the Department of Homeland Security received 1.4 million naturalization applications between October 2006 and September 2007. Over the past year, the naturalization backlog has increased from 6 months to 18 months. This is troubling. A significant number of potential U.S. citizens filed for naturalization hoping to vote in the upcoming November election. Thousands of applicants have been left in limbo. Basic fairness dictates that these naturalization applications are processed in time to allow these individuals the chance to participate in our democracy. The fees have been increased. The administration has not asked for any additional kind of help and assistance to do it. All they have told us is the line is growing longer and longer and longer and longer, and there are going to be hundreds of thousands of people who are qualified to be citizens and vote who will not vote. What will the Justice Department do about it? Attorney General Mukasey. Well, as you point out, the question of processing immigration applications is within the jurisdiction of the Department of Homeland Security. That said, the Justice Department has done and is going to continue to do everything it can to make sure that everybody who is authorized to vote can vote. We have monitors going out to polls to make sure that people who are authorized to vote can vote. We have brought cases challenging-- Senator Kennedy. Well, just on this, General, because my time is up, what is the Department doing to give a sense of urgency to the Department of Homeland Security to move ahead on this or to make sure that individuals who are otherwise eligible are not going to be excluded from participating? I mean, we are talking about suppression and all the rest. When you have got hundreds of thousands of people who are going to be denied the opportunity to vote, it seems to me that we are not dealing with the fundamental issue. Attorney General Mukasey. I will admit to you candidly that I don't know what the contacts are between-- Senator Kennedy. OK. Would you work with us? Would you, please? Attorney General Mukasey. I will do two things. No. 1, I will find out what the contacts have been, if any. And, No. 2, I will work with you, yes. Senator Kennedy. Thank you. Chairman Leahy. Just so we can have some idea where we are going here, Senator Grassley will be next, and I am going to recognize him in just a moment. We will then go to Senator Biden. I am taking the list from the Republican side of the order they are in. After Senator Grassley, Senator Biden, then Senator Sessions, just so everybody will know. Senator Grassley, you are recognized. Senator Grassley. Thank you, Mr. Chairman. I want to start by asking you for unanimous consent that my opening statement be made a part of the record, along with documents that I am going to discuss with my questions. Chairman Leahy. Without objection, it will be part of the record. Senator Grassley. Thank you. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Grassley. General Mukasey, during your confirmation hearing you assured me that you would assist my congressional oversight efforts with the Department. I appreciate your cooperation. You know I'll hold you to your word. I'd like you to know that, prior to this hearing, the Department provided responses to requests dating back to March, 2007. Unfortunately, we received these responses on Friday and have had just 4 days to digest nearly 250 pages of answers. Buried in the responses from the FBI was response to questions 64 through 83 that said, ``Answers will be provided separately.'' Of course, they were not provided separately. For you, I am troubled when I get responses stating one thing, but then you do another. When can I expect this response from the FBI that I've been waiting for since March, 2007, and can I expect these answers before a full year has passed? Attorney General Mukasey. I will admit to you that I don't know precisely what questions, is it 64 through 83, are. But I will talk to the Director about what they are, and about why the delay, and about when we can foresee getting answers to them. I'm sorry for the last-minute part. Senator Grassley. Now, a question on whistle-blowers. Attorney General Mukasey. Beg your pardon? Senator Grassley. Another question. At your confirmation hearing, you testified about whistle-blowers at the FBI and said, ``People ought to be encouraged to come forward and they should be protected.'' The FBI and the Justice Department have not always had a culture that supported whistle-blowers. Instead, the culture usually worked to prevent whistle-blowing through intimidation and retaliation. One of the most difficult issues in whistle-blowing is that of national security whistle-blowers. These individuals have security clearances that prevent the disclosure of our Nation's closest-held secrets. I understand that a security clearance is a privilege and not a right. However, individuals with security clearances who witness wrongdoings often face a catch-22. They can either report the wrongdoing to supervisors who may retaliate against them, or they can sit silent and let the wrongdoing continue. Of course, either situation is unacceptable. As a solution, the Senate unanimously passed S. 274, the Federal Employee Protection Act of 2007. This bill attempts to strike balance. It allows individuals who know of wrongdoing in classified matters to come forward and report that wrongdoing to Congress, but it only allows disclosure to specific persons cleared to hear classified information. This bipartisan legislation would ensure that national security information remains secret, while allowing Congress to conduct the oversight required under the Constitution. On January 22, 2008, you, along with the Director of National Intelligence, Director McConnell, Secretary Gates, and Secretary Chertoff signed a letter objecting to S. 274. [Letter appears as a submission for the record.] I am concerned by statements in this letter which claim that secure reporting mechanisms for whistle-blowers are somehow unconstitutional or jeopardize national security. While I agree that this information needs to be secure, Congress must be able to conduct oversight of the executive branch on matters involving national security. Further, I find it difficult to reconcile this letter with statements made at your confirmation hearings. Now, I am not for blanket privilege allowing whistle-blowers to release classified information at will. That would be impractical and it wouldn't be safe for our country. However, we need a secure mechanism to allow whistle- blowers to make protected disclosures to Congress. Why doesn't Congress have a right to classified information when reporting that information is necessary to report wrongdoing, and why isn't it enough to require that whistle- blowers report classified information to those with the necessary security clearance? Attorney General Mukasey. The issue is, in part, but not entirely, security clearance. The process that you've described cuts off the supervisory chain and cuts off even the President from the chain of reporting. That raises separation of powers issues and creates a situation where somebody is essentially encouraged to bypass supervisors, not to take it up the line, not to take it as far as he can, but simply to go to a Member of Congress who may have a security clearance, but to cut off proper supervision. That may remedy the problem. I recognize that problems occasionally exist, but I, and the signatories to that letter, the DNI, the--I believe the Director of the FBI, and the Secretary of Homeland Security believe that that's not the way to do it. Senator Grassley. Well, isn't it funny that a law that passed the Senate unanimously, that surely had input from the administrative branch of government, now is not exactly the way to do it, so we wait another 5 years to get proper congressional oversight? You know, it just doesn't seem like the real thing. It just seems like every road block is being put in the way of Congress doing its job, and can't you trust people that have a security clearance, whether it is Joe Blow, or whether it's Mary Smith, or whether it's Paul Jones. It seems to me, if they've got a security clearance, they've got a security clearance and that's the protection you need. Attorney General Mukasey. I don't think it's a question of trust. I think it's a question of maintaining the executive's right to supervise its employees, up to and including the President, and where in that chain you permit somebody to go to somebody else. I agree that it's a difficult issue. I agree that it's a sensitive issue. It was simply our view that that was not the way to do it. Senator Grassley. Then I think you have a problem. And I'll stop, Mr. Chairman, here. But it seems to me that you have a problem reconciling what you say about the chain of command that wants to hide wrongdoing in the first place. If you're talking about going all the way up to the President, in between the President and the janitor you've got plenty of people that don't want Congress to know if something is wrong because they don't want egg on their face. Attorney General Mukasey. I don't think it's a matter of wanting to hide wrongdoing. We are certainly willing to work with committees and with Senators, and we have, and we will in the future. I'm not saying that this is a drawing of the line in the sand. This is this particular bill, and it's something we're willing to work with you on, have worked with you on, and will continue to work with you on. Senator Grassley. OK. Thank you. Chairman Leahy. Thank you. As you and I discussed yesterday, a bill that Senator Cornyn and I have done through bipartisan help on FOIA--and there will be questions on that too as we followup. Senator Biden. Senator Biden. Thank you very much, Mr. Chairman. General, it's nice to see you. I'm sorry I haven't had a chance to formally meet you before. Attorney General Mukasey. Me, too. Although we did talk on the telephone, briefly. Senator Biden. Yes. But you have a lot of fans who are friends of mine who have said very good things about you, and it's nice to see you in person. General, I'm a little confused. I don't want to go into whether waterboarding is torture or not. I want to understand sort of the methodology you use in trying to--- because some of what you say--maybe it's just that I'm a little slow--doesn't seem to make a lot of sense to me about this issue of waterboarding. When you boil it all down, in the answers I heard today and what I've read, what you've submitted, it appears as though whether or not waterboarding is torture is a relative question, whereas it's not a relative question whether or not you hung someone by their thumbs, or you hung them upside down by their feet. I mean, you talk about waterboarding in relative terms. For example, am I getting it right? If a person in the government, CIA or any government agency, engaged in waterboarding of a captured prisoner and the purpose of it was because they believed that prisoner knew where there was a nuclear weapon hidden, about to be detonated in the city of Washington, then that might be OK. But if they just waterboarded them just to find out where they purchased their airline ticket, that might not be OK. That's what it seems like you're saying. Attorney General Mukasey. With respect, I don't think that's what I'm saying. I don't think I'm saying it is simply a relative issue. There is a statute under which it is a relative issue. I think the Detainee Treatment Act engages the standard under the Constitution, which is a ``shocks the conscience'' standard, which is essentially a balancing test of the value of doing something as against the cost of doing it. Senator Biden. When you say ``against the cost of doing it'' do you mean the cost that might occur in human life if you fail to do it? Do you mean the cost in terms of-- Attorney General Mukasey. No. Senator Biden.--our sensibilities and what we think is appropriate and inappropriate behavior as a civilized society? Attorney General Mukasey. I chose the--I chose the-- Senator Biden. What do you mean? Attorney General Mukasey. I chose the wrong word. I meant the heinousness of doing it, the cruelty of doing it balanced against the value. Senator Biden. Balanced against what value? Attorney General Mukasey. The value of what information you might get. Senator Biden. That's what I thought you said. Attorney General Mukasey. In one of your hypotheticals, there was getting some historical information or some other information that couldn't be used to save lives, and one wouldn't have to get to the question of whether that was torture or not to find that it would shock the conscience to do it in those circumstances. Senator Biden. I see. Well, I do understand it then. Attorney General Mukasey. That's-- Senator Biden. So the shocking of the conscience is, again, where the relevance comes in. If the purpose of the waterboarding was to, you know, save humanity from 20 nuclear weapons going off, that's one thing. If the purpose of the waterboarding was to find out who the commanding officer of that individual was, that's another thing. I've never heard the statute--I've never heard torture referenced in those ways. Attorney General Mukasey. That's not--that's not-- Senator Biden. I never heard-- Attorney General Mukasey. That's not in the torture statute. Senator Biden. Well, I've never heard any discussion of shocking the conscience in those ways. I didn't think shocking the conscience had any relationship to the end being sought. I thought shocking the conscience had to do with what we considered to be basic societal values, things that we held dear, what we consider to be civilized behavior. You're the first person I've ever heard say what you just said. Now, I'd be delighted--and I don't want to pursue this, unless you do--to have your staff at the Justice Department give me anyone else who, in the past, referenced the discussion of shocking the conscience in the context you just referenced it. I find it to be fairly unique. Matter of fact, it shocks my conscience a little bit. But I find it--I've never heard that discussion. You know, you and I went to law school. I went to a Catholic school where I had to take two semesters in high school, two periods a day, of Latin. I remember Sister Rhode, too, although even as an alter boy I forget my Latin. But the truth of the matter is, I've just never heard the issue of torture discussed in--or what constitutes torture, which is defined by shocking the conscience, in terms of the relative benefit that might be gained from engaging in a technique. I find that pretty--none of the Aristotlean logic I was trained by ever got me there. I don't understand that premise. But at any rate, let me move on. I find one of the--- you know, we are all Senators, very proud--hopefully very proud--of what we try to accomplish. One of the things I take great pride in, and it's self-serving, is having authored the Crime Control Act of 1994, putting 100,000 cops on the street and putting $10 billion into prevention, $10 billion into prisons. I thought that was a pretty good deal. I thought it worked pretty well. I have essentially reintroduced that and gotten overwhelming support in the House and the Senate. We passed it, reauthorizing the COPS program, primarily, but it goes beyond that. The President--it was passed in the omnibus bill. The omnibus bill got vetoed. When the bill came back to us in a compromise, the Burn grants were dropped significantly and the COPS program was essentially all but eliminated again. The rationale proffered to me was that, you know, violent crime is down. It's near historic lows. Your proposals relating to dealing with violent crime--your, the administration--are sufficient, although $1 billion less than we had been spending, to deal with the problem. We state statistics of violent crime being down or up by less than a percent in 2005, 2006, 2007, et cetera. But the fact is, in 2006, there was still 1,417,774 violent crimes committed in America, and 17,034 murders. Now, that's down from the high of 1992 of 23,760. The numbers are not particularly relevant, except the point I want to make is this: I hope you'll reconsider the utility and the necessity of the Biden crime proposal that was put back in, with the help of a lot of people around this table, because I am not prepared to accept 1,400,000 violent crimes a year as an acceptable standard for American behavior. Disraeli once said, ``There are three kinds of lies: lies, damned lies, and statistics.'' I would respectfully suggest that the statistical analysis of crime being up or down begs the question. I find it absolutely unacceptable that, in the United States of America, we still have 1,417,774 violent crimes committed in 2006, 17,034 murders. So I would think that the single biggest bang for the buck, based upon all the data your office has acknowledged in the past, that the more cops we have on the street, the further the violent crime drops. It's a simple proposition. I've been on this committee for years and years. I was chairman of it, or Ranking Member, for 17 years. Chairman Leahy. It is time. Senator Biden. I will conclude with this comment. The only thing I learned for sure about crime is, if there are four corners, three cops on three of the four corners, if the crime is going to be committed it will be committed where the cop is not. So, I'd urge you to take a look at the legislation again. Attorney General Mukasey. I agree with you that the strategy is not to tolerate any level of violent crime, certainly not at the level that you've suggested. What we are trying to do is to target grants to go where the need is and to gather information on what works best, and to get it out to the people who need it. Senator Biden. With all due respect, we know what works best. As old Ronald Reagan used to say, ``If it ain't broke, don't fix it.'' It was working. You guys broke it. Chairman Leahy. Senator Sessions. Senator Sessions. Thank you. General Mukasey, I'd like to thank you for your leadership. I do believe you've been a positive force at the Department of Justice. You've taken on a difficult challenge at a difficult time and we're glad you're there. Just to clarify an issue that just continues to disturb me, it was said earlier that waterboarding has become a worldwide symbol, I suppose, of abuse by Americans of people who are captured. But I'd like to ask you this. That technique that has been so discussed was never used, and has never been used, by the U.S. military. Is that correct? Attorney General Mukasey. As far as I know. Senator Sessions. This was basically a technique used by the CIA, apparently, in a few cases, a limited number of cases? Attorney General Mukasey. I'm not authorized to talk about what the CIA has done in the past. The only thing I was authorized to say is that it is not now part of the program. Senator Sessions. And the-- Attorney General Mukasey. The only way it can be put back in-- Senator Sessions. So it's not a part of the program. We've never had these reckless actions--repeated actions, as has been suggested--so often to abuse prisoners. The fact that the American military, at Abu Ghraib, identified not a problem of torture for information, but just prisoner abuse, the Abu Ghraib scandal, and they prosecuted those people. So I just wanted to make this clear, that I think our military, according to Mr. Goldsmith, and I believe the CIA, have lawyered this a lot. People can disagree, but it has not been a reckless activity that's gone on widescale throughout our government. Attorney General Mukasey. That's correct, so far as I know. And the Department of Justice has prosecuted a CIA contract employee for prisoner abuse, a man named David Pisaro, and got a substantial sentence when prisoner abuse took place. That was somebody in the CIA, not somebody in the military. Senator Sessions. Well, I think this is important. I think it's been an embarrassment to our Nation from a lot of these hearings when we've suggested widescale abuse that is not true. Let me ask you another question to followup on our discussions when you were confirmed. Under current Federal law, illegal entry into the United States is a crime: Section 1325, improper entry by an alien is a misdemeanor up to 6 months, and a felony for a second entry. However, until the recent implementation of Operation Streamline,a zero-tolerance prosecution policy now in place in 3 of the 20 border sections, Del Rio, Yuma, Laredo, no U.S. Attorney's Office has been actively prosecuting those cases. Now almost every illegal entry in those areas is being prosecuted. So, this was an attempt, a testing of a zero- tolerance prosecution policy. It does seem to be paying results. According to the Homeland Security briefing paper, since its implementation, arrests this fiscal year have decreased 50 percent in Del Rio and 68 percent in Yuma. This steep decline in illegal entries proves how important it is to prosecute routine crimes when you're trying to fix a broken system. This is the broken windows concept, I suggest, that New York made famous. Start with the smaller crimes. According to a briefing document by Homeland Security, ``It is critical that the second offense for illegal entry carries a minimum sentence of 30 days in jail and that a third offense carry a minimum sentence of 90 days.'' When I asked Attorney General Gonzales about the problem, he pledged he would pursue replicating it across the entire border and work to convince the Federal magistrate judges to participate, and their cooperation is necessary. I never got an update from him on that progress, but I hope that you'll give me one. When you and I spoke about this issue at your confirmation hearing, you answered very ably, I thought. You said, ``We can't have a system in which the only sanction that results from an attempt to come into this country illegally is that you get to try it again. That's the kind of catch-and-release program that we've had, and brought us to trouble.'' Well said. I asked you to commit to examining Operation Streamline fully and you said you would ``try to look at it and followup if we have the resources.'' You stated that you ``recognized it's a problem of allocation of resources'', but that you agreed ``we need to try to bring to bear some sanctions so that the only result of coming in illegally is not that you get to try again.'' Today in your written testimony, you described how you visited the southwest border last month and how the $7 million Congress has appropriated will allow you to deploy 40 prosecutors and 20 support staff to the border. First, $7 million is not a lot of money. If we need more money, I think you should ask for it. We've been talking about $24 million contracts here just to supervise one corrupt business practice, apparently. But, first, are you committed to expanding Operation Streamline to all 20 border sectors by the end of the year? Attorney General Mukasey. I am committed to pursuing Operation Streamline where it can be profitably pursued. The one thing that my visit to the southwest showed me was that it is hard to pursue a one-size-fits-all strategy simply because there are different problems being encountered in different parts of the border. They have one strategy that they follow of taking people who are confined for short periods of time after their prosecution and releasing them at a point that is very distant from where they first entered. It's a relatively simple thing, but it makes it enormously harder for them to hook up with the people who got them in in the first place and to go back in. That's something that's being pursued. We have to make sure that we have a system behind the prosecutors who are putting cases into the pipeline to absorb those cases, to handle them, and to prosecute them properly. Senator Sessions. Well, Mr. Attorney General, just to wrap up, I believe this works. I believe you've proven that it works. I believe that the cost--you may need some more money, but it's not too much. I believe we can afford that, because if you can achieve a 50 percent reduction in illegal entry by just following existing law, we ought to execute that. Will you continue to monitor it, and will you support expanding if you believe it works? Attorney General Mukasey. I will, and I think it has been an effective program. Senator Sessions. Thank you. Chairman Leahy. Thank you. I will put in the record at this point a letter from Admiral Gutter, who had been Judge Advocate General of the Navy, Admiral Hudson, who had been Judge Advocate General of the Navy, General Fugue, who had been Judge Advocate General of the Army, and Brigadier General David Brahms of the U.S. Marine Corps, who was Staff Judge Advocate to the Commandant, a letter in which they all say waterboarding is torture, other items, and a letter sent to you, Judge, from three of our colleagues, Senator John McCain, Senator Lindsey Graham, Senator John Warner, saying they consider it torture, and those will be made part of the record. [The letters appear as a submission for the record.] Chairman Leahy. I would yield to Senator Kohl. Senator Kohl. Thank you very much, Mr. Chairman. I would like to ask to comment on three local law enforcement programs. First, the Burn Justice Assistance Grant Program, which has been on the administration's chopping block. It's targeted for elimination in every budget proposed by the President. As a result of the President's veto threat last year, funding for the Burn Program was reduced by 67 percent in fiscal year 2008. Back in 2001, my own State of Wisconsin received more than $9 million in Burn funding. However, due to cuts imposed by the President, Wisconsin will receive only about $1.6 million this year. This has had a real impact on our State's ability to fight crime. What we're talking about is losing prosecutors and shutting down drug task forces, and prevention and treatment programs all around the State. Second, two other critical funding programs that have continually been targeted for cuts by this administration are the Juvenile Accountability Block Grant Program and the Title V Local Delinquency Prevention Program. Both of these programs expired last year, and we are currently working on legislation to reauthorize them. The Juvenile Accountability Block Grant Program, of course, provides funding for intervention programs that address the urgent needs of juveniles who have had run-ins with the law. Title V is the only Federal program that is solely dedicated to juvenile crime prevention. As you know, when we cut funding local programs are forced to close their doors and an entire generation of young people do not receive the benefits of these very important programs. These programs need to be reauthorized and they need to be sufficiently well funded, something which this administration has not yet supported. Can you provide us some idea of whether or not this funding will be a priority of yours, as it is for many of us here? Attorney General Mukasey. The funding of targeted programs are certainly a priority. In fact, the President, I believe as part of his budget, has a $200 million targeted grant program, of which a substantial amount--I'm not sure of the precise figure. I don't know whether it's 30 or 60--is targeted to go to Milwaukee, which has had a specific problem, a specific crime problem. That money is targeted to go to Milwaukee. We have also had the Safe Streets Program Anti-Gang Initiative, a gathering of information and the allocation of people and funds out to those places where there is perceived to be, and there is, an increase in crime, whether it's gang crime or any other. So we're looking to use the funds and to use them intelligently and target them where they're needed. I know specifically about the issue in Milwaukee, and that we intend to address it. Senator Kohl. I appreciate that. I will followup with you in the coming days on what we're going to do, particularly, as you point out, for Milwaukee. On Guantanamo Bay, during your confirmation hearing last year we talked about the detention center at Guantanamo Bay. We talked about the long list of national security experts from inside and outside this administration who have argued that it is in the national security interest of the United States to close that prison. Since then, even the chairman of the Joint Chiefs, Admiral Mullen, has said publicly that we should close Guantanamo as soon as possible. You would not add your name to that list. Instead, you said that you were prepared to recommend to the President that we take the responsible course in dealing with the people at Guantanamo. Then you went on to say that you would get the best people you can to give you the best advice that you can get about what to do with Guantanamo. So I'd like to ask you whether or not that advice has been given and whether or not you're prepared to add your name of the list of those who believe that we should close Guantanamo. Attorney General Mukasey. I believe the President has said that he wants to close Guantanamo, so long as it could be done in a responsible way that permits us to deal with the people who are there without simply releasing them. There is a case before the Supreme Court with regard to the status of those people, Boomadin, and there are a couple of questions, issues, and matters that could result from that, including not only whether there is a constitutionally based habeas right, but rather--but also, I should say, whether there is some alternative to habeas that would be sufficient to deal with those people. That is a subject of litigation. It's a subject that's in the Supreme Court, and it's a subject we're facing. There is another case in the DC Circuit involving the adequacy, or not, of combatant status review tribunals and what we can do to improve those. That is before the DC Circuit and it's something that we're conscious of and something we're trying to deal with. Senator Kohl. Mr. Attorney General, I'd like to ask you about court secrecy. Many of us have been concerned for years about the use of secret settlements in our courts. This issue received a lot of attention back in the Bridgestone/Firestone cases in the late 1990's, and yet little has been done to reform the system in the wake of that scandal. As we learned in a recent hearing, judges continue to provide court-endorsed secrecy without considering public health and safety, which in many cases has resulted in injuries that could have been prevented. Now, you're a former Federal judge and now you're the Nation's top law enforcement officer. Do you believe that in cases involving public health and safety, courts should be required to take a closer look at protective orders and weigh the public's interest and information about potential health and safety dangers, along with, naturally, the proponent's interest in confidentiality? Attorney General Mukasey. I think courts should always take a look at a protective order following settlement of a case, particularly when that involves public safety. I don't know of a case where somebody is essentially sweeping a public safety issue under the rug in a settlement, and I would not want any court to approve of that. That's all I can say. Senator Kohl. Well, as I'm sure you know by the history of this whole issue, there have been many court secrecy awards that have occurred and that have resulted in substantial damage to individuals because those records were swept under the rug by the court secrecy order. My question is, do you agree that we should require that, in issues of this sort, a judge needs to consider public health and safety before issuing a court secrecy decision? Attorney General Mukasey. I think a judge should consider the effect on public safety of keeping any settlement secret. Senator Kohl. My time is up. Thank you very much. Chairman Leahy. Thank you. Senator Brownback, then Senator Feinstein, then Senator Kyl. Senator Brownback. Senator Brownback. Thank you very much, Mr. Chairman. Welcome, Attorney General. I want to continue with you on Guantanamo, if I could. I appreciate your articulation of factors that you're looking at on Guantanamo Bay, on closing it, and the President's point. I want to invite you to my State and to Levinworth to the disciplinary barracks, which is the site most often cited, if we're going to close Guantanamo, to move the detainees to, is in my State and the disciplinary barracks. The reason I want to invite you there is, I don't think we're set for this set of detainees to move there to this facility. I've toured the facility. It's a relatively new facility. I think it's an excellent facility, but I don't think it's set for this sort of the detainees that would be coming out of Guantanamo. So, just as a very pragmatic issue, if you close Guantanamo the detainees are going somewhere, and the current projection is, they go to Levinworth and to the disciplinary barracks there. I don't think we're set for that to take place. I would hope you could come and look at it and try to appraise that particular issue, just as a pragmatic one. A second issue is, right next to the disciplinary barracks is the Command and General Staff College of the military, so most of your military leadership is going through the place that's within three miles of the disciplinary barracks, maybe less than that. I'm not sure that's wise. You listed a series of legal questions about moving the detainees to U.S. soil which I think are appropriate. There are also a couple of very pragmatic questions that I don't think is necessarily a wise route to go at this point in time. I don't think we're ready to handle this. Attorney General Mukasey. I agree with you that there are practical considerations. I don't know of any representative from any State who has acknowledged that his State, or any facility in his State, is ready to accept people who are at Guantanamo. I just don't. But beyond that, our other considerations, such as the effect legally of bringing people Stateside, there are people who have said that they intend to bring a flurry of thousands of lawsuits to curtail the process of trying people, so that eventually they would have to be simply released. Obviously, bringing them here is going to make that a whole lot easier. Senator Brownback. Well, I just would hope you would consider coming and actually looking at the facility, or somebody, before, OK, we're shutting this down and we're sending them to Levinworth is the statement that happens. Attorney General Mukasey. Senator, I can assure you that before that ever happens, I will come to Levinworth. Senator Brownback. Thank you. A couple of issues I want to raise with you in the time I have. It has come to my attention that the government is considering--I only say it's considering, but I just want to put it on your radar screen--intervening in a case captioned Knox v. The Palestinian Authority and the PLO to prevent U.S. citizen plaintiffs from collecting damages awarded to them against the Palestinian Authority for acts of terrorism. The only reason I raise that is that some are seeking to vacate a $174 million judgment, and I had hoped that, if you're aware of this, that you would let the U.S. citizens be able to proceed and receive their awards. I don't know that the Agency, the Department, is looking at this at all. I just wanted to raise it for your radar screen. Attorney General Mukasey. I appreciate you raising it. Senator Brownback. A second issue is, we're going to be bringing up, I hope, a reauthorization of the Human Trafficking legislation and we're considering that now. There are some key issues on new definitions that we'll want to work with you and your Department on. I think the Department has done a very good job on a new topic. Senator Biden and I have been working on this since Senator Wellstone and I originally did this. It's a very important piece of legislation, from the level of human trafficking that's taking place globally now. The Department has been nicely on top of it. I think as we look at renewing this, I hope we can build on our successes and not expand definitions to points that we cannot handle it. I don't know if you had any thought that you wanted to give us before we move forward with that legislation. Attorney General Mukasey. I think we have been aggressive in prosecuting human trafficking cases, and we'll continue to be. Senator Brownback. There is a DC gun ban case that's in front of the Supreme Court. The administration's position on this has raised some question about it. I'm just curious if you agree with the position that the Second Amendment protects an individual right to bear arms. Attorney General Mukasey. I do. Senator Brownback. What about, do you view it as a fundamental right? Because there's been a question raised about the administration's view of this. Attorney General Mukasey. The administration's view, as expressed in its brief, is that this is a right that is subject to intermediate scrutiny, that the administration's interest here was in making sure that proper laws that are on the books to regulate, for example, guns falling into the hands of felons, are not swept up and excluded here. But the standard is intermediate scrutiny, it is not simply rational basis. It's an intermediate scrutiny standard that would allow us to continue to enforce Federal firearms laws that we have to continue to enforce, and that was our reason for intervening. That's all in the brief. Senator Brownback. I want to ask you as well on your view, in the time I have left, on the FISA legislation. Some people are putting forward the idea that we should just substitute the Federal Government for telecommunications companies. This has come to be one of the central pieces of the legislation and the debate, is the immunity for telecommunications companies that do work with the government at the government's request. Some are saying, well, let's substitute the government for the telecommunications companies. I want to ask you your thought on that particular issue, but before I do, because I'll probably run out of time on this, I want to thank you for stepping in to this job at a tough time. You get a lot of hard questions. I think you handle them very well. These are uncomfortable topics. They're ones that, a lot of times, we'd all look at and say, well, I'd rather just not deal with that and deal with other things. But it's a very practical world that you're in. I appreciate you, at the end of the administration last year, of a high-caliber career that you bring, and knowledge to this. I appreciate you stepping into the breach for it. Attorney General Mukasey. Thank you very much. Senator Brownback. God bless you, and Godspeed in carrying it on forward the rest of the year. Attorney General Mukasey. Thank you very much. On the specific issue of substitution, the conduct of the companies would continue to be at issue, would continue to be a subject of dispute, which could do two things: it could open up their conduct and means and methods to scrutiny, and as well it could send a signal to them that they can't cooperate in the future without a court order, they can't cooperate in good faith. The over-arching point, I think, to me here, is that this is a limited immunity in the sense that it's limited. It doesn't apply, obviously, to companies that didn't participate and it applies only to companies that participated on the assurance that what they were doing was lawful and that the request came from the President. So, those were the only two categories. But I agree with you that substitution is a bad idea. Senator Brownback. Thank you, Mr. Chairman. Chairman Leahy. Thank you very much, Senator Brownback. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Good morning, Mr. Attorney General. Attorney General Mukasey. Good morning. Senator Feinstein. I've been studying your letter, and I recognize that it is not dispositive on the question of whether waterboarding is legal or not. You conclude that the interrogation techniques currently used by the CIA comply with the law, and waterboarding, you disclose in the next couple of paragraphs, is not one of them. I believe that is correct. For the first time, you disclose that, and you also disclosed the ``defined process'' by which any new method is proposed for authorization, and the fact that the President would have to approve of the use of the technique as requested by the Director and as deemed lawful by the Attorney General. Was this the case in the past? Attorney General Mukasey. I believe this has always been the case. Senator Feinstein. OK. OK. Attorney General Mukasey. I mean, I should say, I'm not authorized to say what happened in the past, but I wasn't told-- Senator Feinstein. And so you didn't look at this. Attorney General Mukasey. I was told that this wasn't new. Beg your pardon? Senator Feinstein. You didn't look at this, because it is widely alleged that in the past at least three people were, in fact, waterboarded. My question is, did the President approve that? Attorney General Mukasey. I can't speak to whether people were, in fact, waterboarded or whether the President approved of that. Senator Feinstein. OK. All right. I thought I'd ask-- Attorney General Mukasey. I can't speak to it because I'm not authorized-- Senator Feinstein. I thought I'd ask-- Attorney General Mukasey. I'm not authorized to discuss it. Senator Feinstein. I thought I'd ask the question. It's my understanding now, where we are is that both the Military Commissions Act and the Detainee Treatment Act really combine to provide the law for the military that waterboarding is prohibited. The loophole is the CIA. I the Intelligence Authorization Conference, I proposed an amendment which would put the entire government under the protocols of the Army Field Manual with respect to enhanced interrogation, and that was accepted by the House, it was accepted by the Senate. It is, in fact, in both bills. If it comes to the floor of the Senate and remains in the bill and assigned by the President, once and for all, waterboarding will in effect be prohibited throughout the government. So, I very much hope that is the case. But I believe that how the enhanced interrogation treatment is administered, and who administers it, the timing of it, is really all-important. I would like to ask that you describe the scenario that you describe in that top paragraph on page 2, how it would work legally if the interrogation is being carried out in a foreign territory. If you look at the--I don't mean to-- this is not a trick question. If you look at the-- Attorney General Mukasey. I could hardly say somebody is posing a trick question if it's something in my letter. I just-- Senator Feinstein. No. You point out in your letter, the process would begin with the CIA's determination that the addition of the technique was required for the program. The Attorney General would have to determine the use and lawfulness. Under the conditions and circumstances, the President would have to approve the use of a technique as requested by the Director as deemed lawful. Assume that most of these take place on foreign territory. How would this work? Attorney General Mukasey. The same way as is outlined in this letter. Senator Feinstein. Now, are you saying that the interrogator would cable the CIA Director? How would it work? How would it be carried out legally? Attorney General Mukasey. The scenario outlined here would require that the CIA Director become aware, however he becomes aware, of a technique, describes the circumstances under which it's to be done, including the safeguards, limits, and as you put it, length, and so forth. To me, I consult with whoever I have to consult with and reach a determination, and then it goes to the President. I-- Senator Feinstein. All right. I'm not trying to-- Attorney General Mukasey. I realize that we--that this paragraph-- Senator Feinstein. I'm just trying to define a process. I know how they say it works. I don't know whether that's legal or not, and that was what I was asking. Attorney General Mukasey. I recognize that this problem does not account for, or perhaps consider, a problem with communication. That's, I guess, my fault because I didn't-- Senator Feinstein. All right. That, I think, is up to us. Attorney General Mukasey. It's my letter. Senator Feinstein. Let me ask you one other question along that line. Is it illegal--is it legal for an interrogation which employs EITs, Enhanced Interrogation Techniques, to be carried out by a non- governmental employee? Attorney General Mukasey. There--well, as you know, there is what's called--what you've called an Enhanced Interrogation Technique that authorizes the CIA to-- Senator Feinstein. Right. Attorney General Mukasey [continuing]. To do those programs. I don't know whether it includes the right for others than CIA--people employed by the CIA. Are you talking about subcontractors? Senator Feinstein. That's correct. Contractors. Attorney General Mukasey. The short answer is, I don't know. I know-- Senator Feinstein. I would like to ask to get an opinion on that, if I might. Attorney General Mukasey. I know we prosecuted a contractor for--as I said, for an offense against a prisoner and he got a--what may or may not look like a substantial sentence. He got 100 months. Senator Feinstein. Well, I think it's--I think I would like to know--as a member of the Intelligence Committee, I'd like to know whether in fact it is legal to contract out the interrogation, using enhanced techniques, to a contractor. OK. Thank you. Let me move on. You received a letter from Special Counsel Scott Block stating that his investigations of possible legal violations in the U.S. Attorney filings and of alleged politicization of hiring at DOJ is being impeded by the Department of Justice. That letter is dated January 25th. I have read the letter. Can you give us some clarity on why the Department has not responded to the Special Counsel? He essentially says he is being stiffed, not responded to. It's a rather lengthy letter. Attorney General Mukasey. I think it ought to be clear, first of all, that there are investigations going on by OPR and OIG into the subjects you refer to. But as I understand it, a response is in the works with respect to Mr. Block's letter, and I'm sorry it hasn't gone out. But his letter, you're right, has been received. And you're right, it's a lengthy letter. Senator Feinstein. I mean, ``After receiving no cooperation for 4 months, we received a letter from Steven Bradbury. Mr. Bradbury reiterates the request that we step down.'' So I assume there is some conflict with the Special Counsel on this. Attorney General Mukasey. I think it should be clear that Mr. Block is in an office that is not within the Department, I believe. Senator Feinstein. Well, this outlines a whole litany of refusals to cooperate in the investigation the Special Counsel is trying to carry out with respect to the firing of U.S. Attorneys, which this committee spent a good deal of timing looking into last year, as you well know. Attorney General Mukasey. I will see to it that he gets a response. Senator Feinstein. All right. And would you make a copy of that available to this committee, please? Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you. We'll take a short break at this point. Senator Kyl. Mr. Chairman, I can be real brief. Chairman Leahy. Then we'll go to Senator Kyl. The witness has asked for a short break. Senator Kyl. If the witness needs a break, you bet. Attorney General Mukasey. Thank you, Mr. Chairman. [Whereupon, at 11:51 a.m. the hearing was recessed.] AFTER RECESS [12 p.m.] Chairman Leahy. The committee will be in order. Senator Kyl, as I indicated before, you're next. Senator Kyl. Thank you, Mr. Chairman. Thank you, General Mukasey. Mr. Chairman, first let me ask, on behalf of Senator Sessions and myself, unanimous consent to submit opening statements for the record. Chairman Leahy. Without objection. And without objection, anybody who wishes to have an opening statement, the record will stay open for that purpose. [The prepared statements of Senator Sessions and Senator Kyl appear as a submission for the record.] Chairman Leahy. Senator Kyl. Senator Kyl. Second, General Mukasey, I specifically want to commend you for the letter that you sent on January 29th. It is, I think, a demonstration of good faith that you communicate in that fashion to the committee. I appreciate it. I'm sure the rest of the committee does as well. And also for the contents of it. There's an old saying that for every complex problem there's a simple and wrong solution. It's always good to be reminded of how complex and difficult sometimes these issues are, particularly when they are, or can be, fact-specific. It's very difficult in those situations then to render generalized opinions. Third, we have an oversight responsibility for your Department. We also have some other responsibilities, including acting on nominations to fill slots that are vacant. I can find out what those all are, but it might be useful if you could simply send up to the committee a list of all the vacant slots that this committee needs to act on so that we'll know specifically the task ahead of us so that we can act as quickly as possible to get those slots filled. Fourth, as Senator Sessions talked to you about Operation Streamline, you were in Arizona, and I can confirm what I'm told by Department of Homeland Security and Border Patrol too, that there is a great deterrent effect for people that otherwise would cross the border illegally, knowing that if they're apprehended they're going to be put in jail for about 60 days. For the 10 to 15 percent who are criminals who come across, obviously it's potentially going to be a lot more than that. But for those who simply come across to work, they can't afford 60 days in jail. My understanding is the same as you testified, that there is a significant deterrent effect, that apprehensions are down significantly in the Yuma sector, which is also, I suspect, due to the fact that there is a great deal of double fencing and other barriers that have been put in place. Here is my plea to you, and my question. You noted some relationship to resources available, and I know that you've added some prosecutors in the southwest border States, but for the last couple of years, because there has been such a strong support for enhanced law enforcement securing of the border and the like, Congress has been willing to spend, I think the simple way to put it, is just about anything that's necessary to get this problem under control. We passed an emergency spending that wasn't offset of $1.3 billion. What I would recommend, even though I understand that you have to submit a budget to OMB and the Director has to be careful in spending taxpayer money, we need to know what would be necessary, both in terms of additional detention spaces, because that's one of the key elements, and second, any additional prosecutors or other Department of Justice personnel, or expenses of which you're aware that would need to be covered in order to extend this program to other areas where it could be efficacious. I'm wondering if you could respond to that, and specifically if you could be able to send us that information in a timely fashion for us to act this spring. Attorney General Mukasey. I thought I sent up the information. I did see, in fact, on an Indian reservation, the dearth of detention space that essentially causes them to have to decide which criminals they will confine and which they will simply let roam free. It's a very difficult thing. Bureau of Prisons has taken, I don't think it's any secret, a big hit. It's very hard to find space. It's very hard for them. It's hard for the marshals who have to ferry these people around. So that is a very difficult problem. Senator Kyl. And the detention space is, primarily, I think, a Department of Homeland Security issue. Secretary Chertoff--I believe this is a rough order of magnitude correct--had asked us for about 43,000 or 46,000 detention spaces and that has been provided now. We need to find out whether that is adequate, or more are needed. But I'm also aware that there's a limit on the number of prosecutors. When I was back home this winter, I was accosted by both State and Federal folks complaining about the increased minimal levels for prosecution. I may be wrong, but my recollection is, unless it's 500 pounds of marijuana, the Federal prosecutors won't even prosecute. The county prosecutors are, of course, going crazy because they have to pick those cases up. It would be very helpful to know what resources would be needed to effectively control this problem, because I have a sense that today the Congress, unlike a couple of years ago, is willing to provide those resources if we have good justification for them. Attorney General Mukasey. I think that 500-pound limit has been relaxed in particular areas, so to deal with what is a substantial problem of people running across with just under and then putting it all together. There's also obviously a question of how fast and how many cases can move through the courts. There's a question of judges and defense lawyers, and so forth. Senator Kyl. Sure. Mr. Attorney General, I'm very familiar with that. The whole tale--we've added a lot of Border Patrol. We've enhanced our ability to apprehend, but all throughout the rest of the criminal justice system, from the public defenders, to jail space, judges, clerks, the whole thing, we have a problem, I understand. We need to know the order of magnitude of the problem so that we in the Congress can fund that. It would be helpful to get your take on what would be appropriate in that regard. Also, and I've raised this with you before and I'll just publicly make reference to it, you know of my interest in the issue of supporting crime victims. It's my understanding that the Department of Justice, at least one individual, has announced plans to take $35 million from the Victims of Crime Act Fund for management and administration. Now, that was a fund that was supposed to go to support victims. It comes on top of a $35 million reduction in the VOCA cap, from $590 million to $625 million. Crime victims are the ones who suffer if this money is taken out for management. It seems to me that management of the Department is the subject of another account, so I would ask your staff to continue to visit with my staff about the best way to continue to support crime victims, and hopefully not raiding the VOCA funds for management of the Department. Attorney General Mukasey. The issue there is not singling out the Victim Fund for a tax on management, rather that other funds have, as part of the--as I understand it, as part of the appropriated money, had to pay a certain proportion of that as the cost of administering the particular fund. That was not unusual for other funds. Up until now, there's been enough money to prevent that general rule from being applied to the Victim Compensation Fund. Regrettably there wasn't this time around, but that's not a decision that somebody made to in any way try to deprive victims or-- Senator Kyl. Well, I appreciate that answer. We do have the ability to affect funding, and rather than allowing victims to suffer it would be good to know what additional needs you have so that we can provide them in terms of appropriation. Since the red light is on, Mr. Chairman, I had one last question. Perhaps I'll simply state it and let the witness respond for the record. But it has to do with your views on the so-called Media Shield legislation. I think it would be very useful for the committee to have the benefit of your views. You indicated in your confirmation hearing that you would look into that and share those views with us, and I think it would be important now for you to do that, and would appreciate that very much. Chairman Leahy. Yes. If you could submit that, please. Attorney General Mukasey. I would simply note that I am one of a number of signatories on a letter relating to that that include the Director of the CIA, the Secretary of Defense, the Director of National Intelligence, and a number of other people involved in the gathering of intelligence, all of whom have indicated problems with that legislation. Senator Kyl. Thank you, Mr. Chairman. Chairman Leahy. And if I could also follow up with Senator Kyl's request for a list of vacancies. If you could also add to that the list of vacancies for which there are no nominations at all. I'm thinking of the Office of Legal Policy and Office of Justice Programs. There are no nominations. If there are nominations that have come up here where the paperwork is not yet complete, like the FBI reports, the list of, I think, 20 U.S. Attorneys, we've received no nomination. Also, Senator Durbin requested that you might send us a list of letters from this committee, both Republicans and Democrats, who have not yet been answered. Thank you. [The information appears as a submission for the record.] Chairman Leahy. Senator Feingold. Senator Feingold. Thank you, Mr. Chairman. Welcome, Mr. Attorney General. Attorney General Mukasey. Thank you. Senator Feingold. I'd like to start off by thanking you for the call on Friday to let me know of the steps you are taking to end the disparate treatment by the Department of gay, lesbian, bisexual, and transgendered employees at the Department. This was very welcome news, and I am heartened by the fact that you followed through on your commitment to me at your confirmation hearing, and you did it really quite promptly. So, I thank you. Sir, another commitment you made at your hearing was that you would not be a ``yes man'' for the President, that you would not hesitate to express disagreements you had with him. Given what happened during the tenure of your predecessor, many of us thought this was very important. Reading through your written testimony for today's hearing, it struck me that on just about every issue you discuss, from FISA to the Media Shield law to the McNulty memorandum, you embrace the President's or previous DOJ positions, apparently without reservation. I was hoping to see a little more evidence of independent judgment, but perhaps we're going to see that in the future. You said today that one of the reasons you do not want to say whether waterboarding is torture is because that would tip off our enemies as to ``how this country applies its laws''. Those were your words. But every time we prosecute a crime in this country we tip off people as to how we apply our laws. We have a system of public laws and public prosecutions in the United States of America. Your statement suggests that you would be unwilling to enforce the laws against torture by prosecuting a government official who is suspected of violating those laws. I'd like to give you a chance to explain whether you'd be willing to prosecute such crimes, and if so, how you would reconcile that with your statement that we shouldn't let our enemies know how we apply the law. Attorney General Mukasey. I don't see the inconsistency because the CIA program is one that requires an elaborate process of authorization to determine that what goes on is not unlawful, and how that decision gets made is different from saying that because we prosecute crimes every day, we are thereby tipping off criminals. We are dealing with two separate phenomena. I have said already, and I'll repeat, that we did prosecute actually a subcontractor, an employee of the CIA, for abusing a prisoner. There was no hesitation there. I don't think that the measure of the degree to which I simply follow the law should necessarily be the degree to which my positions may differ from positions that have been adopted by the administration. I go to work every day, I follow the law, I do my best, I go home, I go to sleep, and I do it again the next day. That's my idea of the job. Senator Feingold. But how do you prosecute in a situation like this without tipping off the enemy? Attorney General Mukasey. I'm sorry. A situation like which? Senator Feingold. In the scenario I've presented. How do you avoid that if you prosecute? Attorney General Mukasey. If somebody is guilty of violating the laws of the United States, then they get prosecuted. That is different from talking about the circumstances in which a particular interrogation technique might or might not violate those laws. Senator Feingold. Let me move on. In the letter you sent to us last night you indicated that you believe the current CIA interrogation program is legal. As a member of the Intelligence Committee who has been briefed on the program, I disagree. But what Congress needs to know, and what I've asked you for in the letter I sent to you on December 10th, is your reasoning and analysis. When will you come to Congress, presumably in a classified setting, and explain your view of the legality of the details of the program, interrogation technique by interrogation technique? Attorney General Mukasey. Those letters are classified. They remain classified. I don't--what I undertook to do, was to review the letters which do, in fact, analyze the techniques and to see whether they comply with the law. I think what you've asked me to do is to go and do something different from what's in the letters and I don't see--and I will not do that. Senator Feingold. You won't come to Congress and explain your view of the legality of the details of the program? Attorney General Mukasey. The view that I have of the details of the program is embodied in classified letters, which I have reviewed and found to comply with the law. They explain it. They explain it far beyond my ability to do it in an off- the-cuff--not off-the-cuff, but in a session with Congress where I'm not sitting with the authorities in hand and with the people at hand to do that review, which has been done in those letters. Senator Feingold. Well, this seems somewhat unacceptable. At your confirmation hearing you promised to let Congress know your views of the program, and to me that means explaining those views. And I'm glad you corrected yourself that we're not talking about an off-the-cuff setting, we're talking about a classified setting where, obviously, you could have the people that you need to have with you and the resources. It is important for us to be able to do more than have just a one-way conversation about this. We need to have an opportunity to talk to you about it and ask you some questions about it, so I'd urge you to reconsider. In your written testimony, you said granting retroactive immunity to telephone companies who may have cooperated with an illegal government surveillance program was necessary to encourage the companies' cooperation in the future. I assume you agree that we don't want to encourage telephone companies-- or anyone else, for that matter--to break the law, correct? Attorney General Mukasey. That's correct. Senator Feingold. Is that correct? Attorney General Mukasey. That's correct. Senator Feingold. So let's take a hypothetical situation in which cooperating with a government request for assistance would constitute a clear violation of the law. That is not the kind of thing we want to encourage, is it? Attorney General Mukasey. We don't want to encourage anybody to violate the law and that covers helping, say, a policeman rob a bank. Senator Feingold. OK. Well, as you know, FISA prohibits companies from complying with requests from the government to conduct electronic surveillance that are not accompanied by a court order or a proper certification. Specifically, under Section 2511 of Title 18, telephone companies may cooperate with a government request for assistance only if the company receives either a court order or a certification from the Attorney General or another high-level government official stating ``that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.'' Now, that law has been on the books for 30 years. It hasn't been repealed or modified during that period, isn't that correct? Attorney General Mukasey. That law remains on the books. Senator Feingold. Should the telephone companies be expected to comply with this law? Attorney General Mukasey. The telephone companies have been compliant with the law. We are now in a regime in which all of this is brought under the Foreign Intelligence Surveillance Court, and that's where we are now. Senator Feingold. Mr. Chairman, I know I'm over my time. I apologize. Thank you. Thank you, Mr. Attorney General. Chairman Leahy. That's quite all right. Then just so people will understand the schedule, we will next hear from Senator Hatch, then Senator Durbin, then we will break until approximately 2. Senator Hatch. Senator Hatch. Thank you, Mr. Chairman. General Mukasey, I think you've done your best to work with the legislative branch, while at the same time preserving the interests of the executive branch here today and in the past. It's not easy and it can really be frustrating, but I for one believe that not only are you sincere, but you're doing your best. I read the letter you sent yesterday regarding the issue of interrogation techniques. And as you did in your confirmation hearing, you approached this issue thoughtfully and fairly. You have made an effort to be as forthcoming and cooperative as you can. You drew the line in your letter between real situations on the one hand, and facts and hypothetical speculation on the other. You wrote in your letter that this area involves ``application of generally-worded legal provisions to complex factual situations in an area of the highest national interest.'' That is not an area in which speculation, hypothetical scenarios, and abstract questions are appropriate. In fact, even the Washington Post this morning called this a ``lawyerly response''. But you are, of course, the Nation's top lawyer, and this is a legal question. I believe that you've drawn an obviously fair and legitimate line, and I respect it. So having said that, let me just ask a few questions that I think need to be asked. Your prepared statement addressed several high-priority legislative issues. FISA reform tops the list. I think both you and I feel that, and hopefully everybody else. It was probably the most important piece of legislation that we will consider in the 110th Congress. The Protect America Act expires this Friday. Last night, we passed only a 15-day extension. Now, I agree with you that stopping terrorists requires knowing their intentions, which requires intercepting their communications. Your testimony discusses the Department's grave concerns with legislation which takes what you call a short-term approach to modernizing FISA. That is what a sunset provision on FISA would be, a short-term and intermittent approach to national security. Stopping and starting, changing authorities and restrictions and policies--I don't think that's the way to proceed or to protect our country. That's why I'm strongly opposed to sunsets in this area. We didn't have any in the 1978 Act and it's worked, more or less, until we got to these particularly high-tech problems of today. FISA, the Foreign Intelligence Surveillance Act, itself had no sunset, as I mentioned. Nearly every one of these laws that have amended FISA had no sunset. Now, does Department of Justice believe that the current FISA Modernization Act should include a sunset? Attorney General Mukasey. It does not. Senator Hatch. OK. Regarding the proposal of some of my very sincere colleagues here to substitute the government in the place of the telecoms, answer me this: would that allow third-party discovery? Attorney General Mukasey. Yes. Senator Hatch. Interrogatories? Attorney General Mukasey. Yes. The whole--I mean-- Senator Hatch. Classified document requests? Attorney General Mukasey. Precisely. Senator Hatch. Trade secrets? Attorney General Mukasey. Yes. Senator Hatch. These would all become public? Attorney General Mukasey. Yes. Senator Hatch. Well-- Attorney General Mukasey. And that's what I meant by saying we would still be litigating the conduct of the companies, and all of these confidential matters, plus the costs imposed on the companies of meeting those requests, would continue to be there regardless of who a substituted party was. Senator Hatch. Wouldn't any verdict in the case reveal whether the government had a specific relationship with a specific telecom? Attorney General Mukasey. It would have to. Senator Hatch. Yes. Isn't all that information highly classified? Attorney General Mukasey. It is. And it would all be-- Senator Hatch. The basis for classification is to protect the information from getting in the hands of the wrong people, right? Attorney General Mukasey. It would all--that's right. And it would all be betrayed by the continuation of the litigation. Senator Hatch. In this case, terrorists. In this case, in the hands of terrorists. Attorney General Mukasey. Right. Senator Hatch. And others, too. I mean, there are other people who would do our country in. Now, I have a copy of a recent letter from the Director of National Intelligence, Admiral Mike McConnell, to Senator Kit Vaughn. The letter contains unclassified examples of extremely important information the Intelligence Committee has gathered under the Protect America Act. Some of the information related to efforts by terrorists to obtain guns and ammunition, movements of key extremists to avoid arrest, information on terrorist money transfers, and just to mention one other, efforts of an individual to become a suicide operative. Now, these are just a few of the many successes that were listed, yet some say that the Act does not protect Americans overseas. They infer that the government could be targeting American families on overseas vacations, and even our military members defending our country. Are you aware of any instances whatsoever in which an intelligence analyst utilized authority provided from the Protect America Act to target innocent Americans overseas? Attorney General Mukasey. No, I am not. Senator Hatch. Now, the topic of reverse targeting has been mentioned often during the FISA reform debate and it refers to targeting a foreign person with the real intention to target a U.S. citizen or a U.S. person, thus circumventing the need for a warrant. From an intelligence perspective, reverse targeting makes no sense. From an efficiency standpoint, if the government was interested in targeting an American, it would apply for a warrant to listen to all of that person's conversations, wouldn't it? Attorney General Mukasey. I should think. Senator Hatch. Not just his conversations with terrorists overseas. Attorney General Mukasey. Correct. Senator Hatch. OK. Now, I asked Attorney General Weinstein about this during a Judiciary Committee hearing last October and he reiterated the government's view that FISA itself makes reverse targeting illegal. Does the DOJ still consider reverse targeting under FISA? Attorney General Mukasey. Absolutely. Senator Hatch. Are you aware of any instances of intelligence analysts utilizing reverse targeting? Attorney General Mukasey. I am not aware of any such instances. Senator Hatch. One last question, because my time is running rapidly. Our national security is greatly dependent on the cooperation of telecom providers. We cannot protect America against terrorist threats alone. They are essential to the process. From a law enforcement perspective, can you elaborate on our government's dependence on the voluntary cooperation of telecom providers? And without getting into any classified information, has the Department of Justice seen a change in the willingness of the private sector to voluntarily assist the government? I might add, if I was general counsel of one of these companies that was going to be subject to civil lawsuits that could disclose all kinds of other things, ruin them in the stock market, and create a whole bunch of other problems, including danger to their employees overseas, just to mention a few, I wouldn't be very cooperative. Attorney General Mukasey. The short answer to your last question is, have we gotten push-back, yes. The over-arching point to be made here is, this is a war unlike any other that we've ever been involved in. Senator Hatch. You've got that right. Attorney General Mukasey. The others have all involved particular countries and particular places where we could go bomb and destroy their infrastructure, and so on. These folks live in and among civilian populations. They target civilian populations. They use all of the techniques of the 21st century. There is only one weapon that we have to defend ourselves, and that is intelligence. Senator Hatch. Thank you, Mr. Chairman. And thank you, General. We appreciate the candor that you have. Chairman Leahy. Senator Durbin. Senator Durbin. Mr. Attorney General, thank you for being here. When I first met you in my office, I asked you if you would tell me who your heroes were, and you told me that you keep a picture of George Orwell on your office wall because of his essay, ``Politics and the English Language'', which I had not read. I got a copy and read it. It's dense. It's profound. I find it difficult to understand, but I respect you for looking at it carefully and admiring his thought process. In that essay, Mr. Orwell is critical of misleading political speech and says, ``As soon as certain topics are raised, the concrete melts into the abstract.'' I would say, Mr. Attorney General, on the subject of waterboarding, that some of your words have melted into the abstract. The last time that we met here was in a similar circumstance, with the room half empty, and I asked a question which continues to be asked to this day about waterboarding. I am still troubled as I listen to your answers. Let me try to be specific and ask you three specific questions. The first, is this. You say in your letter to the committee, ``reasonable people can disagree'' in reference to waterboarding. So could you tell me who those reasonable people might be who disagree? Can you cite any court cases, legal scholars and others? You refer to them as ``people of equal intelligence, good faith, and vehemence,'' I believe. So I'd like to know who you're going to cite as the reasonable people who disagree that waterboarding is not torture. The second thing I'd like to ask you, when you replied to Senator Biden, you suggested that waterboarding under certain circumstances would not shock the conscience. I think the reference was made to nuclear weapons, and discovering nuclear weapons. If that is the case, can you explain to me why our government has now discontinued and prohibited this form of interrogation if there are circumstances which, in your mind, could justify it? The third question. You said that your lack, or your refusal, or your unwillingness to take an unequivocal position on torture couldn't jeopardize anyone because our troops all wear uniforms, and so they're protected against torture under existing conventions and statutes. But certainly there are American personnel, special forces, CIA agents, employees of the State Department, who could be in jeopardy or in danger, who don't wear uniforms, if there is uncertainty about the U.S. position on the issue of waterboarding. Attorney General Mukasey. With respect to your first question you asked, who are the reasonable people who have disagreed about whether waterboarding is torture, there have been people in this chamber who have disputed whether under certain circumstances it wouldn't be legal for the President to engage in techniques described by at least one of them as torture, but then pulled back in order to obtain information to save American lives. Those are matters of record. Senator Durbin. Mr. Attorney General, this body in this chamber, if you refer to the Senate-- Attorney General Mukasey. I'm referring to the Senate. Senator Durbin [continuing]. Has voted clearly, on a bipartisan, overwhelming vote, that we would prohibit such practices with the McCain amendment. So if you're going to rely on the chamber, the chamber has expressed its will in exactly the opposite position you've taken. Attorney General Mukasey. And the chamber, on another occasion, declined, voted down a bill that would forbid waterboarding. And there were people in the course of the debate on the measure that you mentioned who said that the language was so general that it would open things up to all sorts of behavior that they considered objectionable and cruel, which I would think would include waterboarding, because there are people who say that. Senator Durbin. If the Detainee Treatment Act, I think, is clear in terms of the law of the land and the expression of this chamber, and even went so far as to offer amnesty, immunity to employees of the government who have been engaged in it, do you still think that the jury is out on whether the Senate believes that waterboarding is torture? Attorney General Mukasey. The question is not whether the Senate is out on this or that technique. The question is whether the Senate has spoken clearly enough in the legislation that it has passed, and that the Congress and the law has passed, and that the President has signed, which is all anybody has really got to work with. Senator Durbin. So where is the lack of clarity in the McCain legislation? Attorney General Mukasey. The words of the legislation, of all the legislation that's thus far been passed, are words that are general and upon which, as I said, people on both sides of the debate have already disagreed. To point to this language or that language, it seems to me is to pick nits at this point. People have disagreed about the generality of the language and have said that it can be read two ways. Senator Durbin. I might just say, as the Chairman has noted here as a matter of record, Senators McCain, Warner, and Graham, the lead sponsors of this legislation, have said that under the Military Commission Act, waterboarding is a war crime. It is unequivocal. At this moment in time, you have employees of your Department in Iraq, counseling the police and army there not to use waterboarding and torture. In their standard, unfortunately, at least leading up to this moment, has been that it depends on the circumstances. Do you see the problem with your ambivalence on this issue when it comes to setting a standard that we are trying to teach to the world, a standard we want our own people to be protected by? Attorney General Mukasey. The standards--the problems posed by what you call ``ambivalence'', which I don't think is really ambivalence but rather a due caution for the reasons that I outlined, are already matters of record. I want to answer the second question because it suggests that I said I would-- Senator Durbin. It's in the Biden question. Attorney General Mukasey. I'm sorry? Senator Durbin. It was on Senator Biden's question. Is that it? Attorney General Mukasey. No. It was your second question, which regrettably, my notes aren't-- Senator Durbin. The two other questions related to Senator Biden's question about shocking conscience. Attorney General Mukasey. That I said that waterboarding would not shock the conscience. What I described was a situation in which it would shock the conscience. And so far as it being a relative standard, that was something that was put in place by the person who wrote the decision in which that first appears, so that wasn't something that I put there. Senator Durbin. So for clarity then, I assumed--and correct me, please--that you were arguing that the use of such techniques to discover nuclear weapons would not shock the conscience. Attorney General Mukasey. No. What I was saying was that the use of such techniques to discover information that could not be used to save lives and was simply of historical value would shock the conscience. Senator Durbin. Well, that's half the answer. So let's go to the other half. What about the circumstances where the information would save lives, many lives? Attorney General Mukasey. Those circumstances-- Senator Durbin. Would that justify it? Attorney General Mukasey. Those circumstances have not been set out. That is not part of the program. We don't know concretely what they are, and we don't know how that would work. Senator Durbin. Under the military standards, clearly military interrogation standards, they are not interested in the danger. They have just said unequivocally that their personnel cannot engage in this technique. So you're saying that when it comes to the non-military, that is still unresolved as to whether they can use these techniques? Attorney General Mukasey. It is unresolved. Senator Durbin. In your mind. Attorney General Mukasey. Because I have not been presented with a concrete situation. And I would-- Senator Durbin. I've gone over my time and I apologize, Mr. Chairman. Thank you, Mr. Attorney General. Chairman Leahy. Thank you very much. We will stand in recess until 2. The next Senator on the Republican side will be Senator Coburn. If he is not here, Senator Cornyn. On our side, Senators Whitehouse, Schumer, and Cardin. We stand in recess. [Whereupon, at 12:37 p.m. the hearing was recessed.] AFTER RECESS [2:07 p.m.] Chairman Leahy. Welcome back. And Mr. Attorney General, thank you. It is not a lack of interest that you don't have a larger audience than this. What is happening on the--both Democratic and Republican leadership in key committees are trying to work out some of the basics of the stimulus package. They have got an area where both Democrats and Republicans want to work closely with the President, not in a partisan way, but a way for the country to see if there is a stimulus package we can do. I just came from a meeting where a number of members of this committee are at, and I'm sure there are similar meetings on the Republican side who are trying to do that. We're also trying to work out some agreements on FISA. We have this 15-day extension, which is something, again, Republicans and Democrats worked out. Now we're working out some of the things that would be in order for votes for any change. I say that as a matter just to let you know why many on both sides of the aisle are missing. Attorney General Mukasey. I understand people have other things to do. Chairman Leahy. Well, you probably do, too, but I appreciate you being here. Attorney General Mukasey. Not today. Chairman Leahy. Senator Cornyn. Senator Cornyn. 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 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 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 have 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. 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 and I wanted to alert you to that. Attorney General Mukasey. I understand that you did, and I'm grateful for that. I understand that these requests are often filed by people who are lay people 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. Senator Cornyn. As a former judge myself, and as a former judge yourself, anything that could avoid litigation and resolve things informally, I think, would be in an expeditious fashion. I bet you would agree with me that's a good thing. Attorney General Mukasey. I would. Yes, sir. Senator Cornyn. Let me also address FISA reform, something that's very much on Congress' agenda. 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 was a Texan killed in Iraq in May of 2007 during search operations for several U.S. soldiers who had 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 15, 2007. The title of that is: ``Wire Law Failed Lost G.I.'' What the story details is a 10-hour delay necessitated by a FISA application in a circumstance that perhaps would not have been necessary if FISA reform had been passed, in other words, intercepting a foreign-to-foreign communication. I just wanted to 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 is not just hypothetical, it's something very human and very personal, and I wanted to raise that issue. But do you continue to see that as a problem that cries out for resolution? In other words, 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? Attorney General 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. We want to make sure that that's clear. We want to lower the burden on the government to--in all its presentations to FISA, 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 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. That's-- Senator Cornyn. I agree, General Mukasey. Attorney General Mukasey. That's a human face on the problem. Senator 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, and some allusion to the ticking time bomb scenario. 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, 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? Attorney General Mukasey. 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 have also said is that, yes, there are circumstances where waterboarding is clearly unlawful. What I have said is that, simply, 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 play book, nor am I going to call into question what people do or have done when it's not necessary to do so. Senator Cornyn. Thank you very much. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Senator Whitehouse. Senator Whitehouse. 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 lawbreaking currently going on, but the letter is unwilling to look back, as a 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. 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. You know, it's the mission statement of the Department of Justice to seek just punishment for those guilty of unlawful behavior. The famous decision of Berger v. 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. 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 this section is subject to the same penalties, other than the penalty of death, as the penalties prescribed for the offense.'' So we have a statute on point. You are, I believe, the sole prosecuting authority for that statute, correct? Attorney General Mukasey. I am at the top of-- Senator Whitehouse. The Department of Justice is. Attorney General Mukasey [continuing]. The Department of Justice, which is the sole prosecuting authority. Senator 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? Attorney General Mukasey. First, let's talk about how many hats I wear. I wear one hat. It's as 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. Senator Whitehouse. All right. Well, let's talk about the two duties, in the terms of one providing advice to the administration in the same way that a corporate counsel-- Attorney General Mukasey. When it comes-- Senator Whitehouse [continuing]. Provides advice to a corporate-- Attorney General Mukasey. When it comes-- Senator Whitehouse [continuing]. And being an independent prosecutor whose job is to look at the criminal laws and enforce them. Attorney General 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 that 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. That's a-- Senator Whitehouse. So otherwise, as long as-- Attorney General Mukasey. That's a message that I'm not going to send. Senator Whitehouse. The message you send otherwise is that ``I was only following orders'' is a fine response. Attorney General Mukasey. It's not a fine response. It was a response at Nuremberg that was found unlawful, as we both know. Senator 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, inductively? Attorney General Mukasey. No. It's, I had authorization and let's take a look at the authorization and the circumstances under which it was given and what was done, and a whole wide range of variables that I don't have before me. Senator 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-- Attorney General 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. Senator 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 council 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? Attorney General Mukasey. I don't know that that's what I've said. The way that started was, 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. Senator 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? Attorney General Mukasey. You've alighted 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. Senator 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 principal distinction between these two. Attorney General Mukasey. I think there's a principal distinction when the head of the CIA tells you that somebody destroyed tapes, apparently without proper authorization, which is what he disclosed. Senator Whitehouse. And so I don't see how that gets you anywhere. I don't see how that-- Attorney General Mukasey. And all that started--all that started was a preliminary inquiry, and the preliminary inquiry showed the possibility that a crime was committed, and then we started an investigation. Senator 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? Attorney General Mukasey. No, because you're assuming what was on the tapes. You're assuming that the interrogation was unlawful. Senator 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. 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 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 is a split standard there and I'm trying to understand why. Attorney General Mukasey. It seems to me that, since there was 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. Chairman Leahy. The-- Senator Whitehouse. The theory--have I used my time? Chairman Leahy. You have. Senator Whitehouse. I apologize. I will desist. Chairman Leahy. That was a question I had earlier this morning. You'll have time to go into it further. Senator Schumer? Senator Whitehouse. I apologize to the Chairman. Senator Schumer. Thank you, Mr. Chairman. And Judge Mukasey, I want to welcome you to your first oversight hearing as Attorney General. In many ways, both good and bad, you are the type of Attorney General I expected you to be when I voted for your confirmation. On the good side, you have acted decisively in several ways to clean up some of the stench of politics and ideology at the Department of Justice. You allowed an OPR investigation to continue that had stalled under Attorney General Gonzales. As Senator Kennedy noted, you launched a full-blown investigation into the CIA tapes with a good prosecutor. You reinstituted rules limiting contacts between the White House and the Justice Department. You recalled a much-criticized U.S. Attorney in Minnesota to Washington. You made good on your promise to Senator Feingold to address the question of equal access to DOJ facilities by gay and lesbian groups, and it seems in many ways there has at least been a beginning of the return of morale at the Department. So, on issues where I expected you would be a good Attorney General, you have largely been. On other issues, however, especially related to executive power and torture, I never expected your views to be mine, and in fact they differ dramatically from mine and those of many of the members of this committee, many experts, and the majority of the American people. Nonetheless, I thought there was a hope--not large--that you just might rise to the occasion. So, I'm not surprised with your testimony, but I do remain disappointed. I'd like to talk to you about that issue, the issue of waterboarding. Now you've had a chance to further educate yourself about coercive methods of interrogation. Having done that, do you still find the method of waterboarding described in our October letter repugnant, as you stated in the letter back to us? Attorney General Mukasey. As a personal matter? Senator Schumer. Yes. Attorney General Mukasey. Yes. Senator Schumer. That's how you stated it. Attorney General Mukasey. Yes, I do. Senator Schumer. Yes. OK. Now, separate from the pure legal question, which is what we've talked about mostly here today, given that the method is repugnant to you, do you support a ban on waterboarding, whether by statute or executive order? As you know, there is such a statute that Senator Feinstein--I was a co-sponsor of it--has in the--was very good at putting in the intelligence authorization. I think it's now in the Intelligence conference, so it's going to come close. So do you support--let me repeat that. This is not asking the legality. Do you support a ban on waterboarding, whether by statute or executive order? Attorney General Mukasey. There are two parts to that. One part, as a general matter, as a matter of principal, I don't-- and I try to avoid--I tried it when I was a judge, I try it--I try to do it now. I try to avoid using the blank canvas of either existing laws or proposed laws on which to paint my own moral tastes and my own beliefs as to whether something is repugnant or not. Passing that, the question of whether waterboarding should be outlawed or shouldn't be outlawed is a question on which other people own a substantial part of the answer, notably the people involved in gathering intelligence, using intelligence, processing intelligence, explaining our position abroad--that is, the State Department, which does, by the way, a superb job of it--all of those people have to be heard. Senator Schumer. Judge, we know that. Attorney General Mukasey. OK. One of the things, though, that I would want to do before expressing my own view as the junior member of the entire assemblage I've just named, is hear them. Senator Schumer. OK. I really--that is not up to your usual standard of answer here. I didn't ask you--I know you'd want to hear from a whole lot of people and stuff, but you've already stated something to be repugnant. I'm asking you, one of your roles as Attorney General is not simply a decider of what's legal or not legal--that's your most important function--but it's an advisor on policy. Now, I find it hard to understand how you personally, when asked for advice, would not be able to say that something that's repugnant should be outlawed. I mean, I'm asking you the hypothetical not of what existed 3 years ago and not what even exists today. You've stated what exists today. I'm asking you, there's a statute. It's not an irrelevant question. You're likely to be asked the question if you haven't been already. There's a statute that is likely--very likely--to get to the President's desk, and I'm just asking you, in terms of the advice you would give the President, your own personal view, whether by statute or executive order, should waterboarding be outlawed, period. You said it's repugnant. I don't understand how you can now say, well, I have to ask a whole lot of other people. I'm asking you your view. Attorney General Mukasey. Senator, I don't want to trivialize the question and so I'm going to refrain from telling you all the other things that I find repugnant. But suffice it to say that whether something is or isn't repugnant to me, taken by itself, isn't the basis for my recommendation about whether it ought to be outlawed. I want to hear from other people. I want to hear other views. I want to analyze it as a policy matter. I want to be able to imagine, if I can, all of the facts and circumstances in which the question might arise-- Senator Schumer. Now, when you have the-- Attorney General Mukasey [continuing]. With the assistance of the people, the talented people that I have at the Justice Department. Senator Schumer. When you had the discussion, I think, with Senator Biden, then Senator Durbin, you were talking about a standard and you'd have to see the fact situation meet the standard. You didn't say that to us. You didn't say waterboarding is sometimes repugnant, or might be in certain circumstances repugnant. You said it's repugnant. You didn't have any qualifiers. And-- Attorney General Mukasey. The qualifier was to me, yes. That's a big qualifier. Senator Schumer. So I just find it--you have an opportunity here to be something of a leader, I guess. And you are going to be asked whether we should pass a law. This does not get into the conundrum of what to do about the past, which I know you wrestle with. But we have an opportunity not to simply say at this time there won't be waterboarding, but it's the policy. We all know that the military has made it its policy. We all know that, you know, there are all kinds of experts in the same sort of--in a more difficult situation than you on the battlefield who say it should be outlawed. You find it repugnant, and yet you can't say that it's your view there ought to be a law to outlaw it? That doesn't put into jeopardy any of the people you are supervising, I guess, in a broader sense. Attorney General Mukasey. When I was a judge, I was not a settling judge because to me it posed the danger of taking the authority of my office and putting my personal tastes into it and putting my thumb on the scale one way or the other. I'm now the Attorney General, and for me to take my personal reaction to something and put the authority of that office on the scale, when I haven't heard all of the things I've told you I think I have to hear, is to me just as big a mistake, for a lot of the same reasons. Senator Schumer. I have to tell you how profoundly, in this particular situation, I disagree with you. Attorney General Mukasey. I'm happy to hear that I lived up to expectations. I'm very sorry to hear that I lived down to them. Senator Schumer. Well, thank you, Mr. Chairman. Chairman Leahy. Thank you. Senator Specter. Senator Specter. Thank you, Mr. Chairman. Attorney General Mukasey, there had been some comments in the media about Acting Assistant Attorney General Steve Bradbury, with questions being apparently raised by some about his renomination, and I just wanted to take this occasion to give you my endorsement of Mr. Bradbury. I've had considerable dealings with him in his capacity. I worked with him very closely 2 years ago on the issue of legislation to bring the Terrorist Surveillance Program under the Foreign Intelligence Surveillance Court and found him to be an excellent lawyer. I worked with him on a number of the top secret matters on very involved legal issues, and I think he's a first-rate lawyer. I hope he will be confirmed by the Senate, but in any event, my strong recommendation is to see him retained in the Department of Justice. Moving on, I wrote to you by letter dated November 13, 2007 inquiring about two of the matters discussed at the confirmation hearing. One is on the Reporter's Shield, and the second on the McNulty memo on attorney/client privilege. It would be my hope that we could move forward to get whatever positions you have here, because we're going to be moving forward, I think, fairly promptly on legislation on the attorney/client privilege, and on Reporter's Shield as well. On the issue of Reporter's Shield, it passed the House 398:21, reported out of committee 15:4, so I think there is very strong support in the Congress. The House number is well in excess of two-thirds, and the majority in the Senate committee is in excess of two-thirds, regardless of the President's view on the subject. There had been a citation that there were only 24 subpoenas issued as to reporters, and in a letter from the Department of Justice to Senator Grassley dated November 28, 2001, there were details of some 88 subpoenas which had been issued, and I would like to have this made a part of the record, Mr. Chairman. Chairman Leahy. Without objection. [The information appears as a submission for the record.] Senator Specter. The matter came into sharp focus on the jailing of New York Times reporter Judith Miller, and I am still at a loss to know why Special Prosecutor Fitzgerald proceeded to get a contempt citation there. It was disclosed that the source of the information was Deputy Secretary of State Richard Armitage. There are many indications of the chilling effect of what the Department of Justice has done. So my request to you would be that if you have some modifications on a balancing test to protect national security, I would very much like to see those considered in the legislation to do what Congress can to protect vital national security interests. So it would be my hope we could have that meeting that you and I talked about where we could sit down with staff and try to work through it to see if an accommodation could be reached. On the subject of the McNulty memorandum, it continues to be hard for me to understand why this is a bone of contention. The issue was considered in the case of United States v. Stein, with Federal Judge Kaplan in the Southern District of New York writing an excoriating opinion, calling the government's conduct on this issue ``shocking the conscience''. But when you start with two very fundamental propositions, Attorney General Mukasey, one is that the Commonwealth has the burden of proof, and the second is that there is a constitutional right to counsel, which necessarily involves privilege, why should there be any inducement or benefit, let alone coercion, by the Department of Justice to secure a waiver? Senator Leahy and I have had considerable experience in the prosecution of matters. District Attorney of Philadelphia for 8 years. Senator Leahy-- Chairman Leahy. State's Attorney in Chittenden County, Vermont. Senator Specter. Senator Whitehouse. The place is full of prosecutors. I would never have dreamed as D.A. of trying to prove a case from the mouth of a defendant. How can you reconcile or justify this sort of conduct by the Department of Justice to prove its cases? Attorney General Mukasey. I understand. I don't justify, or reconcile, or encourage, or condone any coercion of anybody to waive the attorney/client privilege. I think we've made that clear--I hope we've made it clear--to our prosecutors. We have put in place another memorandum relating to the question of when it is that information can be sought. Prosecutors need to basically raise their hands and say ``may I''. The need to approach the Department and to ask the Department whether there is information that they can seek that may be considered privileged in two categories. One is simply facts. Senator Specter. Attorney General, I don't want to cut you short, but I've got less than a minute left. Attorney General Mukasey. I'm sorry. Senator Specter. I would like this to be a follow-up matter for us to sit down and talk about at length. We've had former Attorney General Meese and former Attorney General Thornburgh criticize the memo. I think the McNulty memorandum is not the appropriate approach. Rather than take more time today, I think that perhaps we can come to an accord on it. I'd like to sit down with you on it. Attorney General Mukasey. The one point I simply wanted to make was that, under the McNulty memorandum, there have been no, zero, requests for a waiver of the attorney/client privilege. No requests for a waiver. Senator Specter. During your tenure, you mean? Attorney General Mukasey. During the duration of the McNulty memo. Senator Specter. Of the McNulty memorandum? Attorney General Mukasey. Yes. Corporations have been allowed, if they wanted to, to come forward and ask for that as a consideration for avoiding indictment, which they want to do. And to say that they can't do that is to sacrifice their welfare for the good of--I mean, it's to deny them the right to be the judge of what's good for them. I don't think that's advisable either. But I'd like to--I'd be happy to talk to you further about it. Senator Specter. Well, even in the situations you state, the corporation may find it to its advantage, but what's happening to the individuals who are being asked to give up the attorney/client privilege? Let's go over this in some detail, if we may. Would you agree to sit down with us and talk about it? Attorney General Mukasey. Yes. Senator Specter. OK. A couple of other points, very briefly. I note in the Wall Street Journal today a report that the FBI is picking up a criminal investigation on possible fraud and possible insider trading on subprime, and I'd just encourage you to give that a very, very high priority because of the very heavy impact. This committee is considering legislation by Senator Durbin, and separate legislation by myself on it. The final point I want to bring up with you is whether, with your administration, we might take a fresh look at the issue of the contempt citations which are outstanding against some of the executive branch officials. I think it is very unfortunate to have those contempt citations outstanding because those individuals are just the messengers. Senator Leahy and I, for the past several years, have been trying to work out a formula where we could question former White House counsel Harriet Miers and others to try to satisfy ourselves as to the investigation of the discharge of the U.S. Attorneys. I think if we could come to terms on the transcript, that we might well be able to unlock the controversy on it. In your confirmation hearings, you spoke favorably about the desirability of a transcript. This is a matter that has been on the President's personal agenda. He appeared on national television when this matter broke and said that he would make available Ms. Miers and others, providing that no oath was administered. Well, I think an oath is desirable, as one was administered to you today. But I personally would be willing to forego it because there is a penalty for false official statements. It carries the same penalty, 5 years. He didn't want to have both houses have people at the hearings, and I think that's something that could be accommodated with a joint inquiry by the House and Senate Judiciary Committees. He didn't want to have it public, which I think is a bad idea, but I would concede that. They wanted to have no transcripts. I believe that the transcript issue really is indispensable, more for the protection of the witness than for anybody else. My question to you is, would you be willing to revisit this with your new administration to see if we can come to some terms? I think the contempt citations will amount to nothing more than wheel-spinning and will take years to resolve. We face the obstacle that the action has to be brought by the U.S. Attorney for the District of Columbia. I understand your position is that that would not be authorized. Is that correct? Attorney General Mukasey. There are opinions of the Office of Legal Counsel going back many administrations confirming that senior advisors to the President are immune when the privilege is invoked as to testimony for their executive acts, otherwise serious separation of powers issues are raised. The history of executive powers issues and oversight issues has long been one that has been deferred or avoided by accommodation. People have been accommodated in all kinds of different ways, ways that I know about and a lot of which I don't. Senator Specter. But Attorney General Mukasey, isn't the matter of immunity of those executive officials a matter for the courts, not a matter for decision by the executive solely? That's why the Congress brings a contempt citation and seeks to have it enforced. It ought to be a judicial determination, not a unilateral ex parte determination by the executive giving immunity to itself. Attorney General Mukasey. Most respectfully, if the topic on which they are to be interrogated involves their official duties and they are senior advisors to the President, it's my understanding that if they are instructed to invoke executive privilege-- Senator Specter. Where does that immunity come from, an executive order or executive practice? Attorney General Mukasey. A direction by the President, just as--I mean, it is something that has been recognized by the courts. The same way it is not mentioned in the Constitution any more than congressional oversight is mentioned in the Constitution, but these are two-- Senator Specter. Attorney General Mukasey, I don't-- Attorney General Mukasey.--matters that are basic. Senator Specter. I don't think that's correct when there's been an effort for enforcement of a contempt citation. There's been a determination by the judicial system. Well, let us--I'm way over time and I appreciate the indulgence. But would you be willing to reconsider the whole issue to see if we can find an accommodation in an era now starting off a new session, where we're trying to have cooperation between the executive and legislative branches? Attorney General Mukasey. I'd be willing to try to find an accommodation, but I don't want to suggest that I'm going to overturn longstanding opinions. Senator Specter. Well, OK. There's no longstanding rule against a transcript, is there? Attorney General Mukasey. I don't know that. Senator Specter. You don't know that? Attorney General Mukasey. No, I don't. Senator Specter. Sometimes, Attorney General Mukasey, it's hard to get an answer on something that's very fundamental. How can there be a longstanding tradition against having a transcript when executive officials are questioned by members on congressional oversight? Attorney General Mukasey. This is different from congressional oversight. These officials are--I mean, these officials are, as I understand it, senior advisors to the President who are being subpoenaed. This is not the Attorney General. These are people who are senior advisors to the President. Senator Specter. But the President has agreed to make them available. It comes down to a narrow issue of the transcript. Attorney General Mukasey. To the circumstances. Senator Specter. And you're suggesting there is a rule and a precedent against a transcript? Attorney General Mukasey. If I suggested that, I didn't mean to suggest it. I said I don't know whether there is. Senator Specter. So it's not what you're suggesting, it's just that you don't know? Attorney General Mukasey. Correct. Senator Specter. Well, let's try to find out. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you. I would note, when you look into this, you'll find that at least one of the witnesses who testified and claimed executive privilege at one point-- testified partially, claimed executive privilege partially, also said that she had never discussed this matter with the President, never had any of these matters discussed with those who were going to discuss it with the President, and frankly we found the claim of executive privilege to be a tad broad. I don't want to use the word ``cover-up'', although that was the first thing that occurred to me. Actually, it was the second thing that occurred to me, too. But let me go and follow up on Senator Whitehouse's questions on the CIA tapes. If waterboarding was shown on these destroyed CIA tapes, how would you determine--suppose we find that there's a back-up to the tapes, and usually in these kind of instances you do find there is a back-up. But let's suppose there is a back-up and you were in there, and it found waterboarding. How do you determine whether that's evidence of a crime or not when there seems to be ambivalence by you regarding the legal status of waterboarding? Attorney General Mukasey. John Furman is in charge of this investigation and he is going to follow it where it leads, and that means wherever it leads. Chairman Leahy. Well, let me ask you about that. John Durham is the-- Attorney General Mukasey. I said ``Furman''. I meant ``Durham.'' Chairman Leahy. I knew what you meant. Is doing this because it normally would have been the U.S. Attorney for the Eastern District of Virginia who has recused himself. Why did he recuse himself? Attorney General Mukasey. I believe he recused himself over issues relating to a case that he had and the fact that he generally has a relationship with the CIA because they're located in his district. I can't-- Chairman Leahy. Well, if Mr. Durham is going to use some of his team, how do we determine, one, what the conflict was, and whether anybody else has that conflict in that team? Attorney General Mukasey. His team reports to him. Chairman Leahy. To? Attorney General Mukasey. To Durham. Chairman Leahy. But some of them are taken from the Eastern District of Virginia, are they not? Attorney General Mukasey. So they are. The Eastern District of Virginia has a requirement that when people appear in court on behalf of the government, at least one of them be a member of the bar of that court. People have been taken from that office who do not have, potentially--it wasn't that there was a conflict determined. There were things that were teased out to determine the possibility that there may be a conflict and he wanted to avoid that. Chairman Leahy. But he made a recusal. In his recusal request, did he lay out what it was that he was recusing himself or why he was recusing himself? Attorney General Mukasey. I'm not going to get into the details of what it was he laid out, what it was responded. Facts were teased out in such a way as to present the possibility that there could be a conflict and in order to avoid-- Chairman Leahy. You granted his recusal. Can you assure us that nobody else in the office who is going to be working with Mr. Durham has the same conflict? Attorney General Mukasey. It's my understanding that the people who were selected were selected because they didn't, and couldn't, have the same possible conflict that was possible if others worked on it. Mr. Durham is the person to whom they report, not the U.S. Attorney. Chairman Leahy. We sent you a letter that said, ``When and how did Department officials or attorneys first become aware of the evidence of videotapes of detainee interrogations?'' Do we have an answer for that? Attorney General Mukasey. You mean, beyond this case? No, I don't. Chairman Leahy. Well, in any case, when and where did the Department officials or attorneys first become aware of videotapes of detainee interrogations? Attorney General Mukasey. That, I do not know. Chairman Leahy. Did they ever view any of these tapes? Attorney General Mukasey. I don't know that. And what was done within the Department is not something that I would disclose if I knew it. Chairman Leahy. Well, wouldn't that be fairly important? If they had viewed the tapes, that would mean that either their tapes have not been destroyed or the Department of Justice was looking at them prior to a decision being made to destroy them, which raises all kinds of other questions. Attorney General Mukasey. I didn't say I wouldn't look into it. I said I wouldn't simply disclose it here. Chairman Leahy. Well, perhaps you and I should discuss this after you've had a chance to look into it in private, perhaps with Senator Specter, because you understand the conundrum I see in this case? If they had viewed them, that meant that at some point they were there. There is a reason for the Department of Justice to view them. Then the question becomes, who gave the order to destroy them? Unless some are still there. Attorney General Mukasey. The question of who gave the order to destroy them is, it seems to me, separate from whether anybody from the Justice Department viewed them, and if so, when. Chairman Leahy. It depends upon when they viewed them. Attorney General Mukasey. It may. Chairman Leahy. For example, was anybody in the Department asked about the advisability or legality of destroying the tapes? Attorney General Mukasey. I've seen a report relating to that. I have seen no evidence relating to that. Chairman Leahy. No evidence related to what? Attorney General Mukasey. To somebody in the Department advising as to the advisability of destroying the tapes. And in any event, John Durham would be conducting that investigation. Chairman Leahy. And you don't recall when and how the Department became aware that the tapes had been destroyed? Attorney General Mukasey. I recall when and how I became aware of it. Chairman Leahy. And that was? Attorney General Mukasey. That was when I opened the door to my apartment and picked up the Washington Post. Chairman Leahy. I remember the time of a CIA Director no longer alive who used to come to the Hill and say, usually the day after the New York Times had reported a number of things going on, I really meant to have told you about that, I was as required by law to tell you about it. I forgot to tell you. The third time he came up, the Intelligence Committee would say to him, well, just mark the New York Times ``Top Secret'' and we'll get the information--or the Washington Post, but in this case the Times--and we'll get the information faster, second, we'll get it in greater detail, and third, we'll get this wonderful crossword puzzle. Attorney General Mukasey. In fairness, it may well be that that issue was on its way to me before that story appeared, but that's-- Chairman Leahy. And I realize there's a million things that come to you, so I-- Attorney General Mukasey. It's not that it came to me and I forgot. Chairman Leahy. This was a pretty big one. Attorney General Mukasey. Yes. Chairman Leahy. Were there communications between your Department and the White House about the destruction? Attorney General Mukasey. Not--I don't understand. I'm sorry, I don't understand the question. Chairman Leahy. Well, obviously at some point there was a plan to destroy them. Was there any communication between the Department of Justice and the White House about that? Attorney General Mukasey. That is something Mr. Durham, it seems to me, would look at. Chairman Leahy. And when he's finished his investigation, do you have any problems with him testifying before this committee? Attorney General Mukasey. We don't--we have never--I think U.S. Attorneys have not testified as to pending cases, and I don't see any reason to make an exception here. Chairman Leahy. We may come back to that if we're unable to find some of these other answers. You've doubtless heard about how the White House, even though they're required by law to maintain records, e-mail records, now say they've destroyed many from the first couple of years, or over a period of 2 years. Have you seen that in the press? Attorney General Mukasey. I saw a story that there were e- mails that should have been there that aren't. Chairman Leahy. Of course, we then also have that they were using the Republican National Committee server, and we were told that's all been destroyed. We were told that, oops, it's all there on a back-up, but we're still not going to show it to you. If they were not following the law on maintaining these records, the laws are fairly clear that White House records have to be retained. You may recall that Congress asked extensive questions about that during the last administration. Is this anything--if it turns out that they have not followed that law, is that something your Department would look into? Attorney General Mukasey. It seems to me I would know the circumstances under which the records were not retained. There are-- Chairman Leahy. Well, if the law--let's assume that the law is clear that records have to be retained, but instead records were destroyed. Does that raise any questions in your mind? Attorney General Mukasey. It's something I would want to know more about. Chairman Leahy. Well, I would hope somebody would find out about it, that when we'd get stonewalled by the White House when we ask the questions why the law wasn't followed, I would hope that the Attorney General would ask the questions. I see Senator Grassley is here and it's his turn. Go ahead, Senator Grassley. Senator Grassley. Thank you. I'm glad to be back again with you. Maybe you aren't glad that I'm back here, but I wanted to leave our mark-up of the stimulus package to come over here and finish some more questioning. As you know, in the 1990's, whistle-blowers exposed major problems with the FBI Crime Lab. Dr. Frederick Whitehurst, who testified before you when you were a judge in New York, raised concerns about the lack of expertise in the FBI crime labs. In response, the former Attorney General recruited five outside forensic experts to carefully review the work of the Crime Lab and all of Dr. Whitehurst's concerns, and to make recommendations. One of the changes was to ensure that the FBI place scientists in charge of the lab. In other words, the FBI put people with expertise in leadership positions. Now there's another FBI whistle-blowers named Bassam Youssef, who is prepared to testify about major problems with the FBI's counter-terrorism operations. The FBI has taken the position that neither Arab skills, nor expertise with Middle Eastern counter-terrorism are required for management positions in the counter-terrorism programs. This sounds too much like the days when the FBI didn't think it needed a scientist to run the crime labs. After your confirmation hearing I asked you about these issues and whether you would consider appointing an independent panel of experts to give them serious consideration. In your written answers, which we just received, you said you were unfamiliar with the problem outlined by Youssef and that it would be among your highest priorities to familiarize yourself with the Bureau's counter-terrorism efforts. Special Agent Youssef, through his counsel, provided my office with a copy of a 10-page letter dated October 11, 2007, filed with your office, detailing threats to our Nation's security caused by the failure of the FBI to hire and promote subject matter experts within the FBI's Counter-Terrorism Division. The examples set forth in that letter are extremely troubling. I'd like to have that letter included in the record, Mr. Chairman. Chairman Leahy. Without objection. [The letter appears as a submission for the record.] Senator Grassley. What action has your office taken to investigate the issues and concerns raised by Mr. Youssef's October 11, 2007 letter? Attorney General Mukasey. As I understand it, the matter with Mr. Youssef is in litigation and, that being the case, I can't, at this point, get into it. Senator Grassley. Well, can I ask you if you would plan to seek an independent review of Youssef's allegations about how the lack of expertise among FBI managers is hindering its counter-terrorism efforts? Why or why not? Attorney General Mukasey. I think we await the progress of that litigation. Senator Grassley. OK. Attorney General Mukasey. Which raises that and other issues. Senator Grassley. So we've got somebody in the FBI who says our counter-terrorism efforts are being weakened, and we are going to wait for the courts of the United States to make a decision, and while we're under threat of attack from terrorists every day, we're told? I believe that we are under threat of attack every day. Attorney General Mukasey. We are. The FBI has been improving its counter-intelligence section and adding to its counter-intelligence section, wholly apart from Mr. Youssef's allegations. That's an ongoing process in which I am actively involved, and the Director is actively involved. Senator Grassley. Mr. Youssef is also a central figure in controversy over the so-called exigent letters issued by the FBI. These letters obtained phone records by falsely claiming an emergency and promising that a grand jury subpoena would be issued later. According to Youssef, he helped the FBI identify and fix problems with these letters. The FBI General Counsel recently briefed committee staff and claimed that her office did not know of the letters ``at the time''. However, according to page 93 of the Inspector General's report, a division of the General Counsel's Office did know about the exigent letters as early as 2004, long before the FBI stopped sending them. We should not have to rely on misleading statements from FBI officials when there is evidence available that would clarify exactly how this mess happened. The Committee requested all of the e-mails related to the exigent letters last year. DOJ promised them to us, but we have received only one small batch of heavily redacted documents. When are these documents coming? It has been almost a full year since they were asked for. Attorney General Mukasey. I will find out about the review of the documents. It was my understanding that, following the IG report, there were changes put in place in the oversight of that, of the issuance of the letters, and that those oversights are being given a chance to work, and hopefully they are working. But the problem was lack of an oversight mechanism. Senator Grassley. In this week's State of the Union address, President Bush outlined the steps the administration has taken to address the ongoing challenge of illegal immigration. Specifically, the President spoke of increasing work site enforcement, expanding the number of agents at the southwest border, and the construction of the fence. As a follow up to the remarks, is the Justice Department committed to actively pursuing cases against employers who knowingly hire illegal aliens, and do you see this as a priority with the Department of Justice? Attorney General Mukasey. It is, we are, and I do. Senator Grassley. In November, Senator Bond and I wrote to you about the disturbing case of former FBI agent Nada Prouty. She is a Lebanese national who recently plead guilty to immigration fraud and unauthorized access to information about cases involving fundraisers for terrorist organizations like Hezbollah. In response to that letter, the FBI provided briefings on the case, where we learned that before hiring her the FBI's background investigation failed to uncover the following information: (1) Prouty had overstayed her student visa; (2) Prouty engaged in a sham marriage in order to obtain citizenship; and (3) Prouty's brother-in-law and former employer was a Hezbollah supporter. According to the FBI, they missed all of this because they assumed she was checked out before getting her U.S. citizenship. I was pleased to learn that in response to this incident the FBI will now be reexamining the background of all of its agents originally from foreign countries. Can you explain a little more about this effort? For example, how many agents' backgrounds will have to be reviewed, and how long will it take? Will agents who were originally citizens of certain high-risk countries be targeted for scrutiny? Will all non-native born agents be reexamined? Attorney General Mukasey. I can't tell you how many agents and whether it's going to involve a reexamination of all non- native born agents. That said, I believe it was more than simply reliance on Prouty having become a citizen. But there are additional safeguards that I understand are being reviewed, contemplated, and put in place. Senator Grassley. The Inspector General's recent report on its recommendations following the Robert Hanson spy case said that the FBI resisted dedicating a special unit exclusively to internal security. The FBI finally agreed to implement this Inspector General's recommendation only recently, years after the Hanson case. If the FBI had a unit focused exclusively on internal security, then perhaps Prouty could have been caught sooner. How long will it be before this dedicated unit is actually up and running, and will the new unit be involved in the project to recheck the backgrounds of foreign-born FBI agents? Attorney General Mukasey. My understanding is, the FBI does internal security on an ongoing basis. Senator Grassley. Would you start over again, please? Attorney General Mukasey. I'm sorry. It was my understanding that the FBI does internal security on an ongoing basis, and I will discuss that with the Director. Senator Grassley. OK. Thank you, Mr. Chairman. Chairman Leahy. Thank you, Senator Grassley. I know this is an area where you've had a great deal of interest and you've followed up on these type of questions, whether it's a Democratic or Republican administration. I appreciate the fact that you show that kind of concern. Senator Grassley. I hope that helps my credibility. Chairman Leahy. It does with me. Senator Grassley. OK. Chairman Leahy. Senator Whitehouse? Senator 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 2340(a), which uses the term ``torture'' specifically in the statute, there are concrete facts and circumstances that would necessitate or justify an analysis toward that purpose. Given that the concrete facts and circumstances justification evaporates, in terms of 2340(a), in that they're 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 determinations 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 process for coming to this decision vis-a-vis 2340(a)? Attorney General 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 investigation is 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. Senator 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 subject matter that would at least give cause for inquiry? Attorney General 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. We would-- Senator Whitehouse. In a classified setting? Attorney General Mukasey. In a classified setting. That's all we--talking about. Senator Whitehouse. It may or may not be ``if''. Attorney General Mukasey. I beg your pardon? Senator Whitehouse. In a classified setting, it may or may not be an ``if.'' Attorney General Mukasey. I'm not entirely sure what that suggests. Senator 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 air waves. If that's not enough to at least open the first red flag as to whether an inquiry should go forward, I don't know what on earth could be. 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. Attorney General Mukasey. All of that depends on whether certification was given, whether permission was given, and whether it was permissibly relied on. 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. Senator Whitehouse. But aren't there two questions here? There is no exemption under 2340(a), 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 are 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, OK, here's what we think took place, here is whether or not it's in violation, and here is 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. I'm just trying to get, which is this? Is it that 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. Attorney General Mukasey. That's not my position. Senator Whitehouse. What is your position? Attorney General 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. Senator 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? Attorney General Mukasey. That is, in part, dependent on what John Durham's investigation shows. Senator Whitehouse. Well, let's hypothesize that a little further. If it shows that waterboarding took place-- Attorney General Mukasey. Let's not hypothesize anything. Senator Whitehouse. Well, there are only two choices, so it's not going to take us a long time to discuss the alternatives. It either did or didn't. Attorney General Mukasey. It's not a question--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. Senator Whitehouse. Well, there's an American public--my light has just gone on. If I may, I would like to thank you for the--and applaud you for the re-erection of the firewall between the Department of Justice and the White House. I thought the manner in which it was done was excellent. I'm sorry we seem to be at loggerheads again on this subject, but I didn't want to close my 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. Attorney General Mukasey. Well, this is a good faith exchange. I'm not suggesting that if you hadn't said that that it wouldn't--you know, that there would somehow be a problem. I appreciate that you said it, but-- Senator Whitehouse. I also want to be fair. Attorney General Mukasey. Me, too. Chairman Leahy. Before I go to Senator Cardin, just one thing to make sure on a question that Senator Cornyn and I were talking to. I don't expect an answer on this here. I discussed this with you out in the anteroom, Mr. Attorney General. But the FOIA legislation that we worked on in a bipartisan way that was passed overwhelmingly, signed into law by the President, that required the Office of Government Information Services, OGIS, which is at the National Archives and Records Administration, required that be there, the ombudsman, all the other things we talked about. Now we see in the Department of Justice, in the 2009 budget for the administration, there may be an attempt to move that into the Department of Justice from where the law says for it to be. The law says, keep it in OGIS and the National Archives, because it's the one place it stays as far away from politics as any department in our government. I'm not looking for an answer, but those who are taking notes of our conversation who are here from your Department, will you please look at that closely? I would like to know, and I know that Senator Cornyn will want to know. Attorney General Mukasey. I will look at it. Chairman Leahy. It's obviously not a partisan request. This is something where the two of us are joined, and we just want to make sure it's done. Attorney General Mukasey. I understand that. Chairman Leahy. Senator Cardin-- Senator Cardin. Thank you, Mr. Chairman. Chairman Leahy.--has been presiding over the Senate--I remember those days. Would you like to go ahead, sir? Senator Cardin. Well, thank you very much. As I was explaining to our Chairman, I might have been back a little bit earlier, but the person speaking on the floor was the junior Senator from Vermont, so it took a little bit longer. First, General Mukasey, as many have said, or most, to compliment you in so many ways in which you have opened up communication with Members of the Congress, but also opening up to try to correct some of the problems that have been very much documented over the last several years, and we certainly appreciate the ongoing working relationship between Department of Justice and the Congress. I want to make a couple observations first, because at least from my point, I want to clarify a couple things that have been said here by my colleagues and yourself. Waterboarding, of course, is an issue that was deeply involved in your last appearances before this committee. I just really want to make an observation about waterboarding, if I might. First, from any standard on basic human rights, you cannot justify waterboarding. I think we all acknowledge the horrible process it is. Second, from the point of view of U.S. leadership internationally, we are tarnished when we try to defend any use of waterboarding. Then the third point I would make, is that if it's fair under extraordinary circumstances for us to try to justify the use of waterboarding, then it's going to be difficult for us to protect American interests when powers that are in a war with us decide that they will use it against U.S. soldiers. So for all those reasons, I would just urge you, as we go forward in this debate--and I know you've only been in office for 3 months and there's a lot of issues that you have been confronting--that I believe clarity is needed here and would just urge you to reflect on that. I'm not asking you to respond any further on the subject, but to reflect on that, because I think it is troublesome. I chair the Senate Helsinki Commission, which is involved in international human rights. I must tell you, it's very difficult for us to explain why the administration is hedging on this issue. The second point, on the issue we're going to have to deal with next week on FISA, on the retroactive immunity, I understood your responses to several of our Senators, including Senator Specter, but I would urge you also to take into consideration what Senator Specter said about the precedent of giving retroactive immunity as to the further review by our courts of potential abuses and whether giving retroactive immunity could have permanent damage on the appropriate role of the judiciary in protecting the civil liberties and rights of the people of this country. I think that there have been good-faith suggestions made that would protect the telephone companies, but also try to preserve the rights of our courts. I applaud Senator Specter and Senator Whitehouse for their proposals. There are other proposals that are out there. I would urge that you take a look at this to see if maybe there isn't a common ground that we could come together on in order to work out the issue of the telecommunication companies without jeopardizing the roles of our courts. The third point I would raise with the sunset of this law, which you have in your statement urging against the sunset because of predictability of the statute, the Senate bill that's on the floor has a 6-year sunset, the House bill has a 2-year sunset. I have an amendment for a 4-year sunset. I believe it's important for the next administration to engage this issue. I would just point out that whoever is responsible for using the power contained in FISA, it's going to be a much stronger position if Congress is engaged on the subject. It's easy to say, well, we'll provide the information. But if there isn't a date in which Congress has to act, the level of cooperation generally between agencies and the Congress is not as much, and Congress' interest is not as much. I think it would be very helpful for a continued role between Congress and the intelligence community and the administration on these subjects, and I think a sunset is very important. But that's not what I want to question you about. I just wanted to make observations on those points. Again, I'll give you time if you want to respond on any of those three. But I want to make sure we get, in this hearing, to the election issues and the Civil Rights Division. I don't believe there's been enough attention so far asked on those issues. We have an election coming up in 2008, and if this election is any indication of what's happened in 2006, then I think we can anticipate there will be efforts made by candidates, or political parties, or individuals to try to suppress minority voting. You and I have talked about that. We agree that that should have no place in American politics. We've seen in previous elections fraudulent material and information that has been used in minority communities to intimidate voting. I just would like to get some clarification from you, going into this election cycle, how you intend to have the Department of Justice engaged in this election to make sure that those type of tactics do not go unchallenged and that, if necessary, from your point of view the laws are amended. We have a law pending here that we hope to get passed that would strengthen the Federal Government/Department of Justice role and making sure that type of activity does not take place in politics in America. But I would hope that you would give fair warning to any candidate, or political party, or individual, that those type of tactics will be challenged by the Department of Justice. Attorney General Mukasey. We have monitors, and will have monitors, out to make sure that there is access to the ballot by people who should have access to the ballot. Also, there is in draft a memo that I am sending to all prosecutors, indicating to them that their sensitivities in a time of election have to be heightened to address in part those issues, and in part the dangers posed by bringing prosecutions that could be perceived as somehow affecting the outcome of elections and--to that too. I want us to enforce voting rights. I want us to make sure that there is no perception that any prosecution or withholding of prosecution is done for the purpose of affecting the outcome of an election, and that any investigations are carried forward only based on what the facts show, what the law shows, and whether a case is ready to go or not and based on whether it would or would not be appropriate timing for any political party or group. Senator Cardin. I appreciate that. Let me be more specific. If your office learns of activities that are aimed at suppressing vote by giving out wrong information, such as, you find an orchestrated process where a candidate is giving out information telling minorities that they'll be arrested if they have unpaid parking tickets, that I just want to make it clear--I hope it's clear in your agency that you will look at those types of allegations and investigate them, and if necessary prosecute to the full extent that you can under law. Attorney General Mukasey. You and I have discussed statements that are clearly fraud. This isn't a matter of opinion about one candidate about another. Senator Cardin. Right. Attorney General Mukasey. This is misinformation about voting places, about having parking tickets be the excuse for denying somebody the right to vote, and so on. We are going to make every effort to make sure, and use every resources at our command to make sure, that that does not happen. Senator Cardin. I thank you for that answer and I appreciate that answer. Just one more comment or question dealing with the Civil Rights Division. You and I have talked during your confirmation hearings about the priority of that Division. I know that the head is subject to confirmation and there is a nomination that has been made. I again ask you to give your personal attention to the Civil Rights Division and return it to its historic role of being the protector of the rights of minorities and look for those types of actions that will have impact to empower all people in our country to the civil liberties and rights of our Nation. Attorney General Mukasey. We observed the 50th anniversary of the creation of the Civil Rights Division this year, which means in my lifetime there was no Civil Rights Division. Yet, that division has become emblematic of the role of the Justice Department. I know that. I've met with the nominee to be Assistant Attorney General in charge of that division. I've met with the unit chiefs within that division to encourage them and to reinforce them in their historic mission, and it is my belief that they are so encouraged and so reinforced, and I intend to make sure that they are. I appreciate your interest in this because it just-- Senator Cardin. Yes. And I look forward to working with you in that regard. I think it would be helpful. There are several members of this committee, many members of the Senate and House, that are interested. I think it would be helpful to continue this dialog, and I look forward to the confirmation process for the Assistant U.S. Attorney. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Senator Whitehouse, did you say you had one more question? One more little question? Senator 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 winds 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 a later time. I appreciate very much the Chairman's indulgence, and I appreciate the Attorney General's responding to that. Chairman Leahy. No. I think that's an area I'm quite interested in, too. I realize some of these we may have to discuss in a classified section. We have read--there's actually been books written on this, on the disarray of the Office of Legal Counsel and the problems that it has caused all the way through the administration. The Senator from Rhode Island raises a good question. Perhaps that's something that we can meet privately first to talk about, unless you wanted to say something here. Attorney General Mukasey. I know that the regnant wisdom is that if you comment when there's no question, that you're putting your foot in your mouth. Senator Whitehouse. Good call. [Laughter.] Attorney General Mukasey. But the book, or a book that you refer to in referring to OLC says that, regardless of what you think or don't think about the opinions, nobody in that unit ever believed that they were violating the law, or ever intended to violate the law. Those are two important points that Jack Oldsmith made in his book, and that, in my view, too rarely get discussed. Chairman Leahy. No, I agree with that. I'm not suggesting that you break the law. I just want to make sure that we have opinions of that nature done because it's the best law, not because it's an ideological-- Attorney General Mukasey. Absolutely. We agree on that. Chairman Leahy. I have no problems with whoever is President to say, OK, if we can act within the law, here's policies I want carried out. But I want to make sure somebody looks at the law and says, well, you can do that, Mr. President, or you can't do that based on what the law is. In fact, I had one other area on this, actually raising from two different writers who often have different views. Nat Hentoff raised concerns about Mr. Durham's lack of independence. He said that ``Durham will report to a Deputy Attorney General, who then reports to the Attorney General, and thereby will not be autonomous.'' Then conservative scholar Bruce Fein, who served in the Reagan Justice Department, who has testified before this committee a number of times, raised similar questions. He said the flaw in the current arrangement is that the Attorney General is still entrusted with determining whether to invoke State secrets of executive privilege to withhold critical evidence from the prosecutor. It would be like President Nixon determining what evidence to give Archibald Cox or Leon Jaworski, investigating Watergate. I read both those articles. The question came to my mind, why wasn't he just given the kind of authority that Special Counsel Patrick Fitzgerald was given in the CIA leak case? Attorney General Mukasey. There is a regulation regarding when you appoint a Special Counsel and when you don't. You appoint a Special Counsel when there's a conflict. To suggest that every time a big case comes up in which the government is under investigation in some fashion there's a conflict, does two pernicious and unnecessary things. Chairman Leahy. So what you're saying is that there may have been a conflict with a U.S. Attorney, but you don't see a conflict in your office, therefore he doesn't have to have the position of Mr. Fitzgerald? Attorney General Mukasey. Correct. I don't want to tell everybody that, every time that happens, they can't have faith in the Justice Department because they can't, and I don't want to tell the Justice Department, we don't have faith in you because this is a big investigation. Chairman Leahy. Of course, then that raises the question I asked earlier, what was the conflict that required the U.S. Attorney to recuse himself. Attorney General Mukasey. That was the result of a consideration of possible facts, and the act that was done was done out of an excess of caution. Chairman Leahy. I realize we're going in a bit of a circle. We probably will have this conversation more. But I see Senator Durbin is here. Senator Durbin will ask his questions, and then I have a couple of closing remarks and you'll be able to go back to running the Department and we'll be able to go back to seeing what mischief we can cause on the floor of the Senate. Senator Durbin. Senator Durbin. 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? Attorney General Mukasey. Yes. Senator Durbin. Do you have an opinion of him as-- Attorney General Mukasey. Yes. Senator Durbin [continuing]. An attorney, an individual? Attorney General Mukasey. I worked with him when he was U.S. Attorney, I was the chief judge. He had occasion to be before me, both in his capacity as a lawyer and because there are administrative matters that the U.S. 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 to get his counsel on the Justice Department in general. He is a very sound, able person. Senator Durbin. I take it from that you respect his judgment? Attorney General Mukasey. I do. Senator 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 wire tapping, 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, ``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.'' I'd like to ask you, have you reviewed all of Mr. Bradbury's opinions? Attorney General 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. 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. Senator Durbin. Well, let me ask you about two specific areas which you've been called on, probably more than any others, to comment on. First, is the area of interrogation techniques and torture, and the second relates to warrantless wire tapping 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? Attorney General Mukasey. I have 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 was lawful. Senator 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? Attorney General Mukasey. If it's the opinion relating to the current program, then I necessarily reviewed it. Senator 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 ashamed if the memo became public. Attorney General Mukasey. The opinion-- Senator Durbin. Did you have a chance to review that opinion? Attorney General Mukasey. The opinion that I reviewed relating to the current program was dated in 2007, so I don't think the timing works out. Senator 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? Attorney General Mukasey. I will look at it again. Senator 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 the 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 the de facto head of this agency, when 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? Attorney General Mukasey. I have dealt with him as the person--as the principal person at that office. Senator Durbin. Doesn't this violate the spirit of the law, the Vacancies Reform Act, since adequate time has lapsed since his nomination was returned by the Senate? Attorney General Mukasey. I believe he has been re- nominated. Senator 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. I would suspect that his nomination will depend on your review of those opinions and your testimony on those. Attorney General 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. Senator 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. Attorney General Mukasey. And I would point out that his opinions were not--his opinion was not that opinion. Senator 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. Chairman Leahy. Thank you. Well, Mr. Attorney General, one, I appreciate the fact that you have kept in touch on a number of issues. I have appreciated the things we've done that have been on a personal basis and not necessarily business. I also appreciate the fact that you want very much to restore if need be, and to maintain if that works, the high morale of the Department of Justice, a Department that has some of the finest, finest lawyers in America. I said to you the other day, if you or I spent a lot of time with many of them we wouldn't have any idea what their politics are. I think that is very, very necessary because we rely on that. But I'm worried we're not getting enough clarity on critical issues. We have heard references to legal opinions, to justifications. Facts remain hidden from the Congress and the American people. It's a hallmark of our democracy that we say what our laws are and what conduct they prohibit. We have seen what's happened when hidden decisions are made in secret memos and that's held from the American people, held from their representatives here in Congress. It erodes our liberties, but it undermines our values as a Nation of laws. As I said when I opened this hearing, it's not enough to just say waterboarding is not currently authorized. The Attorney General of the United States, I feel, should be able to declare that it's wrong, that it's illegal, that it's beyond the pale. It's been that way since the time of President Theodore Roosevelt. Now, earlier today I put in the Record a letter I received from Major General John Fugue and Rear Admiral Don Gutter, and Rear Admiral John Hudson, and Brigadier General David Brahms. I want to quote from that letter: ``Waterboarding is inhumane, it is torture, and it's illegal.'' These were all Judge Advocates General. They also quote the sitting Judge Advocates General of the military services from our committee's hearing last year in which these sitting generals unanimously and unambiguously agree that waterboarding is inhumane, illegal, and in violation of the law. I'm afraid that when the administration doesn't declare waterboarding as off limits, it undermines our moral authority of the United States. We've seen the oppressive regimes around the world who are saying that whether they waterboarded or tortured would depend upon the circumstances, whether they think they need to, and then they cite the United States. That endangers American citizens and military personnel around the world. It lowers the standards of human rights everywhere. On a personal basis, I was at the World Economics Summit last week. I heard from a number of countries who are friends of ours, historically friends of ours, that wonder why we can't just unequivocally say such things are wrong. I think my two colleagues would agree that if an American were waterboarded anywhere in the world, no Senator, no American would have to know the circumstances or the justification for it. We would condemn it. There would be a resolution passed by both bodies unanimously to condemn it. I think it's unfortunate. I realize you are acting within the restraints of the administration, but I think it is unfortunate, a reflection of our laws and our values, if the Attorney General cannot say even that waterboarding of an American is illegal. That's how far from our moorings we've strayed. Now, oversight helps make governments work better, something that Senator Grassley, Republican from Iowa, has said. Hearings like these are accountability moments. I think that while we want accountability, we're short on it. The one thing you should know and that many of us feel should have been different, or more thorough answers, I think I can state that every member of this committee wants the Justice Department to work well. We want the Justice Department to be the best of any such department in the world. We'll work with you. We may disagree with you on some things, but we'll work with you to help it become that. Mr. Attorney General, you are free to say anything you'd like. You actually get the last word here. Attorney General Mukasey. Well, all I'll say by way of the last word is that yesterday you and I had a conversation in which I expressed the hope that whatever our disagreements were, they would be such as they were the last time, that enabled us to go out, shake hands, agree to work together and proceed from there and actually work together and proceed from there, and they have been. I am grateful to you and to the members of this committee for that because it allows me to continue to do my job and it allows us to work together. I can't ask any more than that. Chairman Leahy. I said I'll give you the last word. Let me just add to what you said. As one who has been in, now, my 34th year in the Senate, who looks at my earlier career as a prosecutor as one of the highlights of my public life, I will work with you on those things to make it better. I think both you and I would agree that we need the best Department of Justice, and when this President leaves, that he leaves the Department of Justice in the best shape possible for the next President, whomever that might be. With that, we stand in recess. 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