High praise from Sen. Arlen Specter (R-PA) for Attorney General Michael Mukasey:
Sen. Arlen Specter (R-Pa.) today accused the Bush administration of being overly obstinate on a range of controversial issues, expressing particular frustration at Attorney General Michael Mukasey's unwillingness to compromise.
"Mukasey is non-negotiable," Specter said at a meeting with the Washington Post editorial board. "Mukasey is still wearing his robe."...
Specter did give Mukasey faint praise by acknowledging that he was better than his predecessor as attorney general, Alberto Gonzales.
"He's a big improvement," Specter said. "It would be impossible not to be."
"Judge Mukasey is a very learned guy," Specter continued, "but he's a very, very rigid guy. And he was rigid during the confirmation process. He was not easy to deal with when I had the job of shepherding [him] through the confirmation process. But I was for him and I'm still for him compared to either Gonzales or a vacancy."
During a Senate Appropriations Committee hearing this morning, Sen. Dianne Feinstein (D-CA) questioned Attorney General Michael Mukasey about that October, 2001 Justice Department memo in which John Yoo found that the Fourth Amendment, which protects citizens against "unreasonable searches and seizures," had "no application to domestic military operations."
Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.
She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo.
Here's video of the exchange:
That memo remains classified, and Mukasey said that working to declassify portions of or entire secret Justice Department legal memos by Yoo and others was a "priority" of his, but he refused to supply a timeline for when he might make those determinations. He was very mindful of Congress' "legitimate oversight role," he said.
"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"
"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.
"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.
"There are no domestic military operations being carried out today," Mukasey replied.
"I'm asking you a question. That's not the answer."
"I'm unaware of any domestic military operations being carried out today," he repeated.
"You're not answering my question," she said.
Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."
When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."
"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.
"Without regard to the Fourth Amendment?"
"Yes."
"My understanding is that is not operative."
The Washington Postreported last week that the Justice Department "repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on 'the particular context and circumstances of the search.'"
It's gotten to be something of a pattern with administration figures of late: making sweeping claims about national security matters that do not stand up to scrutiny. Just Monday, Sen. Russ Feingold (D-WI) complained that Director of National Intelligence Mike McConnell (who has something of a habit with this), had mischaracterized liberal opposition to retroactive immunity in the Senate as a bunch of impeachment-crazed loonies.
This time it's Attorney General Michael Mukasey who's catching flak. In a Q&A session after a speech last week, Mukasey said:
"[Officials] shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that's the call that we may really want to know about. And before 9/11, that's the call that we didn't know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went."
The problem with this, as Glenn Greenwald at Salon has shown, is that nothing of this sort seems to have happened. Greenwald asked former executive director of the 9/11 Commission Philip Zelikow, who responded that he was "not sure of course what the AG had in mind" and came up empty guessing.
In a letter today, House Judiciary Committee Chair John Conyers (D-MI) calls Mukasey's statement very disturbing and writes, "I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks." And anyway, he adds, there's no reason why the FISA law would not have served to intercept the call in this instance. So what's Mukasey talking about? he wants to know.
You can read the letter, which was also signed by fellow committee members Jerrold Nadler (D-NY) and Bobby Scott (D-VA), below. The lawmakers also ask, not for the first time, for a copy of the October 23, 2001 memo by John Yoo that declared the Fourth Amendment kaput (it had "no application to domestic military operations").
Maybe it's a coincidence. But a little more than a week after the U.S. Attorney for Los Angeles created a stir by disbanding his office's public corruption unit, Attorney General Michael Mukasey will be giving a speech in California "to highlight the Department's efforts to investigate and prosecute public corruption" according to a press release.
The speech, sponsored by the Commonwealth Club, will be given at the Intercontinental Hotel Grand Ballroom in San Francisco.
So if last week's move sent a message to California politicians, it seems Mukasey is striving to send the opposite one.
Attorney General Michael Mukasey has an open mind. Way open. From The Legal Times' blog:
"We need to stay engaged here because the stakes are tremendous," Mukasey said. "We're willing and happy to work with Congress on a workable bill. The Senate passed a workable, bipartisan bill that contains some compromises. The House passed a bill that was neither bipartisan nor workable."
While Mukasey offered no hint that a compromise is in the works, he said the House proposal does not offer guarantees to the communications industry.
"The people we work with need to know that they can be secure in working with us," he said. "That would introduce the same level of uncertainty that would be introduced by having litigation go on in public...If you tell somebody that you've received assurances, but the propriety of your conduct is now up for grabs, that's not exactly reassuring."
You knew that the administration wouldn't like the House Democrats' new surveillance bill. And indeed they don't. This afternoon, Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell released a statement criticizing the bill, saying that "we are concerned that the proposal would not provide the Intelligence Community the critical tools needed to protect the country."
They focused on the bill's requirement for warrants to precede surveillance and the lack of retroactive immunity for telecoms as two particular areas of "concern."
They also don't like the two-year sunset period set out for the bill, saying that the "uncertainty created by a short sunset does not provide the stability needed for intelligence operations." And that congressional commission to investigate the program? They don't like that either, saying that it would only "redo the extensive oversight done by the intelligence committees in Congress over the past two years."
They conclude:
“We remain prepared to continue to work with Congress towards the passage of a long-term FISA modernization bill that would strengthen the Nation's intelligence capabilities while protecting the constitutional rights of Americans, so that the President can sign such a bill into law.”
And what do the Dems have to say to all this? Here's a statement just out from House Judiciary Committee Chair John Conyers (D-MI) and House intelligence committee Chair Silvestre Reyes (D-TX):
“The Administration, which has refused to even attend negotiation sessions between the House and the Senate, has now apparently launched another round of scare tactics and falsehoods. The American people expect government officials to wrestle with these difficult issues and reach common sense solutions that protect Americans from terrorism and preserve our civil liberties. Unfortunately, the President’s advisors seem more inclined to issue ‘my way or the highway’ press releases concerning a bill the Administration hasn’t even read. The Congress will continue to give this issue the careful consideration it deserves and we hope the Administration will change course and join us in this effort.”
Jonathan Turley, professor of law at George Washington, writing today in The Los Angeles Times:
The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey's action.
In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers....
When reduced to its purest form, Mukasey's Paradox is that government officials cannot violate the law -- but that because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law.
Attorney General Michael B. Mukasey refused yesterday to refer two new House contempt citations to a federal grand jury, saying the White House aides involved in the case cannot be prosecuted because they were following legal advice from the Justice Department.
In a letter to House Speaker Nancy Pelosi (D-Calif.), Mukasey said the refusal by White House Chief of Staff Joshua B. Bolten and former presidential counsel Harriet E. Miers to comply with congressional subpoenas "did not constitute a crime."
So now it's on to court, where we'll have the novel situation of the House Judiciary Committee suing the White House.
We know what Attorney General Michael Mukasey thinks about investigating the CIA's use of waterboarding. Not gonna do it.
And that's precisely what he said in a letter to Sen. Dick Durbin (D-IL), who's been hounding him on the issue, yesterday (you can read Mukasey's letter here). But Durbin thinks that Mukasey is missing the point. He writes:
...I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law” (my emphasis).
In other words, Mukasey's responses have been focused on whether the CIA agents (and possibly contractors) who carried out the waterboarding should be prosecuted. But Durbin says the emphasis should be on those who authorized the activity. He explains: "Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law."
And accordingly, Durbin writes that he will ask the Justice Department’s Inspector General and the Office of Professional Responsibility "to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful." You can read Durbin's letter in full below.
A similar investigation was launched in January, 2006 into whether the Department had properly reviewed the administration's warrantless wiretapping program; Bush ended it just as quickly as it began, however, by denying investigators the necessary security clearances. Shortly after Mukasey took office, that investigation started up again.
Durbin had demanded answers to a number of outstanding questions from Mukasey and said that he would hold the nomination of Mark Filip as deputy attorney general until he got them. Since Mukasey responded, he writes, he will release his hold on Filip's nomination.
Just to complete the theme of the day, Michael Mukasey said today that if Congress passed contempt citations against current and former White House officials based on their refusal to respond to subpoenas, the Justice Department would not enforce them, as federal law instructs.
Rep. Robert Wexler (D-FL) was the one who first popped the question. If Congress passed a citation against White House chief of staff Josh Bolten, who, along with former White House counsel Harriet Miers and Karl Rove, refused to show up when subpoenaed by Congress as part of the U.S. attorneys investigation -- would the DoJ enforce it?
Mukasey's simple answer was "no." Enforcing the contempt citation is "not permitted when the president directs a direct adviser of his, somebody who directly advises him, not to appear or when he directs any member of the executive not to produce document."
This is not much of a surprise. The administration has been saying this since last summer. And Mukasey indicated some wariness on the question during his confirmation hearing -- although he said he hoped he wouldn't have to make that decision.
So now Congress knows what the answer will be if the Congressional leadership ever decides to bring it to a vote.
Rep. Hank Johnson (D-GA) put the question to Attorney General Michael Mukasey: TPMmuckraker was knocked off the Justice Department's email distribution list and has been told that they can't be put back on; has there been a change in the Justice Department's policy since he became attorney general?
The "short answer," Mukasey replied, is "I'm not aware with how the distribution of press releases is arrived at. I do know that all the press releases should be on our website. So they should be generally available." Translation: we can go fly a kite.
Johnson followed up, asking if Muksaey was the one who'd made the decision. No, he said. He hadn't been aware of the issue until "it was called to my attention in a letter from the chairman." But, of course, he came prepared with his talking point.
Here's video:
A quibble: all emails sent via the Department's Office of Public Affairs are not available on the Department's website. There are a number of documents, such as the attorney general's prepared written testimony for hearings or transcripts of background briefings, which are only provided via email.
Since we were told that "[the Department's Office of Public Affairs] simply [is] not able to put everyone on the list," we haven't been able to get any further explanation, even after Chairman Conyers' letter asking about the issue. If the Department wants to explain on their website, that would be fine too. But a response of some kind would be appreciated.
Update: Well, I guess it was just a matter of time before this rose to the level of a "-gate." And The Politicois first with Muckrackergate.
Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was "insulated from criminal liability?"
Mukasey wanted to say it more carefully. "I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."
But even if that opinion was "inaccurate," Delahunt wondered, and that behavior really did violate the U.S. criminal code, you're saying that someone who relied on it would effectively have "immunity from any culpability?"
"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.
Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?
That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.
Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.
Mukasey replied that it was a "practical consideration."
When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."
Update: As I said earlier, it's worth recalling former OLC chief Jack Goldsmith's comments that the OLC has the power to dispense "advance pardons."
The Justice Department will not investigate whether CIA agents engaged in torture by waterboarding detainees, Attorney General Michael Mukasey said earlier.
Ditto goes for the administration's warrantless wiretapping program, Mukasey added later, when asked by Rep. Jerrold Nadler (D-NY) whether he would appoint a special counsel to investigate.
The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.
Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).
Mukasey also went back to correct his statement during last week's hearing that he "didn't know" if the President had ordered the warrantless wiretapping outside the law. Silly me, he said, of course it was legal -- it was authorized by the DoJ.
Update: Here's the video:
Now you know why Jack Goldsmith, the former chief of the DoJ's Office of Legal Counsel, said that OLC has the power to issue “free get-out-of jail cards,” or "advance pardons" with its opinions.
Well, not that there was much mystery about it, but Attorney General Michael Mukasey immediately put any ambiguity to rest when he began his testimony before the House Judiciary Committee this morning.
Chairman John Conyers (D-MI) put it to him: since administration officials have disclosed that CIA agents waterboarded three detainees, "are you ready to start a criminal investigation?"
"No, I am not," was the direct answer.
His reasoning was a repeat of his answer to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department "cannot possibly" investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.
Update: Here's video:
Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.
Earlier today, CIA Director Michael Hayden confirmed that the U.S. had subjected three detainees to waterboarding.
Sen. Dick Durbin (D-IL) thinks that’s worth exploring. And in a letter today, he called on Attorney General Michael Mukasey to open an investigation:
In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated…. Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law.
You can read the letter in full below.
When Sen. Sheldon Whitehouse (D-RI) pressed the attorney general on this question last week, one of the arguments Mukasey deployed for not investigating was that the notion of any possible torture was hypothetical. Well, it’s not so hypothetical any more, Durbin is saying.
Durbin also says that he will keep a hold on the administration’s nominee for deputy attorney general, Mark Filip, until Mukasey answers this letter and a number of other letters from Congress. He explains: “I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress.”
Senate Democrats plan to delay a floor vote on President Bush’s nominee for the No. 2 post at the Justice Department until the department responds to several Judiciary Committee oversight letters.
Majority Whip Richard J. Durbin , D-Ill., said Thursday that the nomination of Mark Filip for deputy attorney general will be “held on the floor” until the panel receives responses, adding that Democrats have notified the department of the demand.
Among the letters that have yet to be answered:
Leahy and Arlen Specter of Pennsylvania, the panel’s top Republican, also wrote to Mukasey and Director of National Intelligence Michael McConnell on Dec. 21 asking them to preserve any audio or video recordings of detainee interrogations. The two lawmakers asked Mukasey and McConnell to canvass the government for such recordings and report back to the committee.
Mukasey so far has proven a mildly superior correspondent to Alberto Gonzales. Which is to say that he occasionally answers a letter.
As I noted earlier, Mukasey indicated early in the hearing that the criminal investigation of the CIA's destroyed torture tapes may well explore whether the interrogation techniques shown on those tapes were legal. But as Mukasey made clear, that may or may not happen.
So Sen. Sheldon Whitehouse (D-RI) wanted to know, is the Department of Justice investigating whether the sorts of techniques used by CIA agents were torture? And if not, why not?
Well, they aren't. And as for the why not, he and Mukasey went round and round on the question for two rounds of questioning. Here's Whitehouse's second try:
In this and the other exchange it became apparent that there were two justifications for Mukasey's stance.
The first you might call the real reason. It's one he succinctly described earlier when he said "I [am not] going to call into question what people do or have done, when it's not necessary to do so."
The second rested on a legal argument that was seemingly less self-justifying -- but he had real trouble getting it to stand up under Whitehouse's questioning.
The main issue, he argued, was whether the proper "authorizations" were given.
Well, isn't Mukasey's emphasis on "authorizations" really the Nuremberg defense? Whitehouse wanted to know. "I had authorization and therefore I'm immune from prosecution?"
Michael Mukasey is attorney general in large part due to Sen. Chuck Schumer's (D-NY) support. And in his questions today, Schumer started by commending a number of Mukasey's actions (restarting the OPR investigation into the warrantless wiretapping program, tapping a well-qualified prosecutor to investigate the CIA tapes' destruction), but then said that he was "disappointed" in Mukasey in other ways. And he tried his best to give Mukasey a hand and pull him out of the swamp.
His question was simple. You've said that waterboarding is "repugnant." So, if it is repugnant, don't you think that a ban of waterboarding is a good thing? Wouldn't you support that?
Mukasey didn't take Schumer's hand. He said he'd need to mull it over. Here's the video:
Schumer was unhappy. "You have already stated something to be repugnant... Why could something “repugnant” not be outlawed?"
"Senator, I don't want to trivialize the question," he replied, "but I'll refrain from naming all the other things that I find repugnant." Whether something is repugnant to him, he said, is not a good basis for whether it should be outlawed. "I want to analyze it as a policy matter." He said that he didn't want to put his own "personal tastes" into his office; he wanted to hear everything there was to hear about it from all his advisers. Before that time, he couldn't say.
"I have to tell you how profoundly in this particular situation I disagree with you," Schumer closed.
Sen. Dick Durbin (D-IL) picked up where Sen. Joe Biden (D-DE) left off. Does the attorney general really think that it depends on the circumstances when you can waterboard somebody?
Here's the video:
Durbin pressed the point that the Senate had, on a broad bipartisan basis, prohibited "such practices with the McCain amendment" (the 2005 Detainee Treatment Act).
But the Senate had also "voted down a bill that would prohibit waterboarding," Mukasey replied.
"You still think that the jury is out on whether the Senate believes that waterboarding is torture?" Durbin wanted to know.
"The question... is whether the Senate has spoken clearly enough in the legislation that it has passed...."
"Where is the lack of clarity in the McCain legislation?"
Michael Mukasey finally got into the nitty gritty of how he thinks about torture, and he seemed to finally show his hand.
Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?
Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."
What does "cost" mean, Biden wanted to know.
Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.
Marty Lederman blogs: "What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not 'cruel treatment' under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure)."
Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."
Here's the most fruitful of the responses about waterboarding that the senators were able to elicit from Mukasey so far.
Sen. Ted Kennedy (D-MA) had a long wind up before delivering his punch. After detailing how objectionable waterboarding was, how it was clearly torture, as clearly as robbing a bank is stealing, he came out with: "Would waterboarding be torture if done to you?"
"I would feel that it was," Mukasey replied. But then he devolved into his practiced take which he detailed in his letter last night. He can't just come out and say that waterboarding is clearly torture when done to anyone, he says, "because of the office that I have." It was a brief moment of clarity.
Update: Actually, Mukasey's responses to two other questions, detailed above, proved even more clear.
Michael Mukasey is not a man to live in the past. It's a much more difficult place.
Sen. Arlen Specter (R-PA) started his questions by asking about the President's Article II powers under the Constitution. Do you think that the President can break any law he pleases because he's the President -- including, say, statutes banning torture?
"I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids," Mukasey shot back.
"Well, he did just that when he violated the Foreign Intelligence Surveillance Act" Specter responded. "Didn't he?"
Well, "both of those issues have been brought within statutes," Mukasey responded, apparently hoping that he wouldn't have to discuss the stickier past.
"That's not the point," Specter pressed. "The point is that he acted in violation of statutes, didn't he?"
"I don't know," Mukasey conceded. Awkward.
"There's no dispute about that," isn't there? The law says you have to go to court to get a warrant for wiretapping and the administration didn't do that.
Mukasey then wound into a description of the alleged problems with FISA regarding foreign to foreign communications.
"But I'm talking about wiretapping U.S. citizens in the United States" Specter protested, before giving up, saying "Well, not getting very far there, let me move on...."
Better Than Fredo
Mukasey Refuses to Say Yoo Fourth Amendment Memo Withdrawn
Durbin Calls for Inspector General Investigation of Torture Memos
Mukasey: The Law Is What The Justice Department Says It Is
