The US Senate Judiciary Committee began Day 2 of its confirmation proceedings this morning for Judge Michael Mukasey, Bush's nominee for US Attorney General. You will find my summaries of yesterday's hearings here & here.
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
(c) First compiled on this message board, with the help of skdadl, my partner in all-things-Harrison-Ford ;)
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10:24 AM
Leahy: Regarding subpoenas for WH staff, executive privilege, and contempt citations, you indicated that you would undertake an independent analysis...
Muk: When the WH gets a subpoena, they refer it to the DoJ, as happened here (letter from Clement); if WH then, relying on that letter, relying on the DoJ, and there is nonetheless a contempt citation, we're in the position where the DoJ had to prosecute someone who followed the advice of the DoJ; there are 2 opinions: Ted Olson and...I can't remember the other (2 OLC opinions saying that for the USAtty to prosecute for contempt based on reliance on an opinion letter originating from the DoJ would not be appropriate).
Leahy: some of these things are ex post facto; some have not used privilege before, but all of a sudden they're called before cmtee and then use privilege--isn't that difft? Issue comes up after the fact?
Muk: basis for assertion has to include opinions of DoJ; hard to envision that the WH would seek the view of the DoJ before they took any position on privilege; unless someone went off on a "tear"...
Leahy: some of these claims are extremely broad: "Pres never interacted with me but I'm claiming exec privilege..." for e.g.
Muk: that sounds broad, but I think exec privilege covers more than direct communication; current litigation, national security, etc.
Leahy: last July when the HJC was considering contempt for *former* WH official, someone in admin said USAtty was *not* permitted to argue against legal opinion provided by Dept. What do you do in a case like that?
Muk: 2 OLC opinions Walter Bellinger (NOTE: I think he means John. B. Bellinger) and Ted Olson say that when Pres asserts privilege is relying on DoJ opinion, it can't be appropriate for same Dept to issue contempt...
Leahy: how does battle with UScongress get resolved?
Muk: don't know. Grand jury? Don't want to start parsing words...
Leahy: I'll spell out more clearly with you, but I want your answer in writing.
Leahy: Congress has clearly legislated in are relating to FISA; if it's stated very clearly what must be done; if you operate outside of that, wouldn't it be illegal?
Muk: depends on whether what goes outside statute, nevertheless still w/in Pres authority.
Leahy: but where does Pres get this authority? e.g. ask FBI to raid 25 houses, not waiting for courts, there's no urgency, we just "kind of like to do that"
Muk: "kind of like to do that" is not any kind of assertion of authority; the statute, regardless can't change constitution
Leahy: can Pres put someone above the law by authorizing illegal conduct?
Muk: contrary to statute but w/in authority to defend country, then Pres is putting someone *within* the law
Leahy: I see a loophole big enough to drive a truck through. We'll come back to this.
*SKDADL NOTES*
Leahy was unintentionally kicking a photographer sitting on the floor in front of him yesterday .
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10:30 AM
Specter: Pres can authorize torture?
Muk: no, b/c torture is barred by the constitution.
Specter: where in const?
Muk: by 5th, 14th and 8th amendment; bars conduct that "shocks the conscience"
Specter: regarding FISA: exclusive procedure is to get a warrant, having probable cause; was Pres permitted to violate FISA b/c Article II powers or did he violate the law?
Muk: not sure what violation we're talking about...TSA?
Specter: warrantless wiretaps. Pres violated FISA. Is it justifiable b/c Article II.
Muk: I understand that Pres believes that FISA wasn't only applicable statute; that he was acting under AUMF 2001
Specter: I don't think anyone ever seriously intended that our AUMF justified violating FISA
Specter: Steve Bradbury, some members of cmtee have asked that his nomination be withdrawn; I believe he ought to be confirmed. The acts on Bradbury's part were carrying out Pres's orders. AG Gonzo, when we had issue of OPR see if TSA was properly authorized; Gonzo said Pres's decisions. Bradbury in June and July, there was considerable discussion of telecom corpse resposnsibilities. Moving to subpoenas when Cheney talked to cmtee members w/o talking to me. Here's my letter to Cheney in summer. Following my letter, Bradbury and my staff had convos about TSA and putting it under the FISC. He was competent, professional and able. Candid and unusually so for DoJ (*snerk*). Lead to meeting w/Pres Bush, who agreed to support the legislation. My staff and I had worked this out w/Bradbury. I think he was A+. He oughta be confirmed.
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10:41 AM
Specter: Reporters privilege...the majority of reporters subpoenaed go to jail. Judith Miller was kept in jail for 85 days. Ms Plame did not qualify to make it a National Security matter (Armitage was the leaker and everyone knew (Grrrr! Not this again!)...this matter will be coming up and we're pushing for floor action. The question: there's an exception of National Sec. Matter for judge to decide whether disclosure outweighs national sec privilege. Issues very complex, but in our system it's up to fed judges to make decision. I want your views on the subject. Importance of news gathering which has exposed corruption, etc. Quotes Jefferson..."newspapers w/o government"...
Specter: what do you think?
Muk: have my own history of representing reporters, e.g. successful NY shield law. Sounds innocuous, but I have some anxiety about National Security matters...first of all, it's not always possible to show what the outcome is gonna be from disclosure of info. E.g. list of al Qaeda co-conspirators. Ramsi Yousef case, where someone testified about delivery of cell-phone battery to someone else. Disclosed that a line of communication had been compromised. Shut down w/in days of that testimony. Nobody knows what we lost. It's imponderable. Second: fed judges don't have training, resources that NDI has to weigh issues like that. They rely on law clerks and what's submitted to them. That's enough in most cases, e.g. make appeal, decision reversed. Stakes much higher with National Security. Separate question: who's a journo? We talked about that yesterday. I have misgivings. The Plame case? Bad cases can make hard law...
Specter: just an assertion of National Security is too much of a blanket authority. Help search for a way.
Leahy: you said Pres couldn't authorize torture, b/c against the law but you told us that Pres could authorize/bring-others-into law w/surveillance. How is that? Provisions of search and seizure?
Muk: 4th says we're protected from S&S but goes on to say... e.g. we are all searched at airport w/o warrant.
Leahy: but we have a choice. We don't get on a plane. But w/email, don't know for years that we've been searched and specific law has been violated. How can pres say "that's National Sec, authorize telecom to clearly violate statute"...why can't he do the same thing on torture?
Muk: telephone records have never been protected by 4th, b/c belong to company
Leahy: but the conversations are protected. Their lives could be ruined, jobs lost, and so on. We should come back to this, b/c you can't say we have a clear statute in some cases (torture) but Pres can do it in others.
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10:52 AM
Sen. Feinstein: this aft we're marking up a very big bill. Yesterday, the House bill fell apart. Much of the commendation of the House Intel cmtee, the bill is bipartisan.
Feinstein: the TSA could have been w/in the law from the very beginning. The formulation of an 11 judge FISC, sitting 24-7...guarantee of law to the greatest extent we possibly can. I read Church report (1978 post FISA bill) which outlines major historic trend to essentially take Foreign Intel, exploit loopholes and use propaganda domestically. There's a real need for a FISA that we can say to US people is the *exclusive* authority.
Feinstein: quoting you, "in the area where authority left off (FISA) and Pres would have the authority to act, there's very scant if any case law if intel gathering for criminal cases, something might be more flexible than gathering of intel." But there is very fulsome evidence, that every effort was made 1978 that electronic surveillance be under law. You mentioned AUMF: there was NO intent to allow Pres to wiretap outside of the law. It never came up. I sent Pg. 101 of report on FISA bill (reading). FISC prohibits Pres, notwithstanding any powers, from violating any of these statutes. They repealed that section. Expressly repealed them. The FISA does not need Pres powers where it finds them. Subs a clear, legislative authorization. Appropriate to repeal section, suggesting that the statutory std was not the exclusive standard for surveillance included therein.
Feinstein: AUMF did not expressly grant, nor was it contemplated that he would use that do go outside of FISA. He did not HAVE to go outside FISA. What bothers me is that you, yesterday, sustained that gap, and I hope what we do is close that gap with this new bill.
Muk: if Pres can act w/in FISA, then that is where he has to act. I don't want to look for areas of disagreement, but, the only place we might is in the view: notwithstanding the Congress saying specifically, we are restricting the Pres's authority under the constitution. Whether a past Congress said "we acknowledge that the Pres might have authority beyond the statute"...to repeal that won't change constit'l reality. If it was always poss for Pres to act w/in FISA, there's no need to go beyond. There are procedures approved, w/o going for separate warrants for e.g.
Feinstein: admin didn't TRY to do that before the heat got very hot, then they went and did it. That's the reason FISA should be exclusive authority...the 4th amendment *does* come into play. You have two butting amendments, perhaps, but when you list the AUMF, I think the history contradicts.
Leahy: the AUMF is the weakest reason. The intel cmtee can't cave on this, put pressure on this cmtee to authorize illegal conduct. There's pressure to immunize illegal conduct.
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11:00 AM
Sen. Kyl (R-Arizona): retroactive liability, there could be a chilling effect on telecoms if we don't protect them from potential suit (Awww....poor babies); to agree w/Sen. Specter on his comments viz Steve Bradbury (Rolling mah eyes)
Kyl: reporters Shield law, to correct the record wrt one thing Specter said; from DoJ's own report, #s demo a decrease in subpoenas in recent years. In 19 source-related matters, only 4 have been approved. There are almost NO cases in which reporters have gone to jail.
Kyl: want your insights as well about Shield law
Muk: there are w/in DoJ, very elaborate procedures before anyone can subpoena a reporter. Some AUSatty w/subpoena and typewriter can't just issue to a reporter...has to be "Main" Justice dept. If you need to change internal regs, can change standards pretty easily. Much harder when it's actually in stone, in legislation.
Kyl: your job as AG is to enforce law, ensure safety, prevent/control crime, seek punishment, seek fair/impartial admin of justice. Interesting that people who have worked with you in these various capacities have been impressed with you...suggesting that in your position as AG, you'd carry on (blah blah blah)
Kyl: Mary Jo White commented that in the Blind Sheikh case, "DoJ is very lucky to get [Mukasey]"...your reputation fits in very tightly with your prospective responsibilities as AG.
(Kyl is having a lovefest)
Kyl: do you have any insights for us as to how you view your job? Huge challenges from terrorism, etc.
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11:11 AM
Feingold: over night you've gone from being agnostic, to holding a rather disturbing view: Pres might violate statute if he wants to use Article II. Are you telling us that anytime Pres wants to act against a National Sec threat, he can violate a statute?
Muk: I recognize force of Just. Jackson's three step approach, but I recognize that each branch has its own authority. E.g. You have exclusive authority to vote me up or down for any reason or no reason. If I'm displeased with result, I could not file a lawsuit claiming I was denied a right, even if I got a judge that was sympathetic. The authority belongs only to you. There are areas of Pres'l authority. We're not dealing with areas of necessarily black & white. Very important that push NOT come to shove.
Feingold: Youngstown case, they DID have right to go to court and they won. Jackson's 3 part thing. So this troubles me and I have great respect for you, but this area is the MOST NB one where repairing has to be done. Getting away from ever-expanding article II power.
Feingold: death penalty. Gonzo refused to speak personally, wanted death penalty and refused to speak personally w/USAtty involved, and yet used this reason as the one for dismissal. How involved would you be?
Muk: there's no analogous penalty. That means I'm gonna review every such case in excruciating detail. Dept of J tried to assure that death penalty seek/noseek depends only of facts of the case, history of defendant, cruelty...
Feingold: will you refuse to speak to USAtty that disagrees with you?
Muk: difficult to say. Defendant's crime might be no better, background no better where USAtty more accustomed to death penalty...system was supposed to treat two people same way.
Feingold: why not speak w/USAtty?
Muk: would want USAtty's views made known to me. Some have good & conscientious reasons for not seeking DP.
Feingold: should add'l cost of DP be taken into consideration?
Muk: uh...among other considerations.
Feingold: GLBT serving honourably in DoJ. Ashcroft/Gonzo refused to hold DoJ Pride events; prohibited from advertising events at DoJ. Refused to recruit at GLBT atty groups, though WILL advertise at other minority atty meetings. Will you stop the mistreatment?
Muk: don't understand this treatment. I never took orientation into acct in my previous career.
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11:18 AM
Sen. Tom Coburn (R-BatCrapCrazy...er...Oklahoma): what will you do to ensure that "loyalty to constitution" will be carried out at DoJ?
Muk: lead by example. Make certain that, if there is a problem that would compromise constitutional std, to get into it up to my elbows and help. I've never managed anything this large (huge DoJ) but I have had a hands-on management style, and I want to continue that. Don't want to be caught by surprise.
Coburn: DoJ unique in that it's the only agency that's allowed a %ge of balance at end of year to spend on IT etc. We recently passed limitation on conferences, spec to certain groups (unindicted co-conspirators) and real concern about money spent on conferences. Can you control this? A real conservative concern about your budget.
Muk: I emphatically agree with that. I did not attend many conferences. Not a fan of publicly funded 'get togethers'
Coburn: concerned about morale at DoJ. We have impacted that by the controversies, real or otherwise. What is your plan to bring "esprit de corps" back to DoJ?
Muk: don't want by my words or actions to create self-fulfilling prophesy, where talking about bad morale creates bad morale. ...
Coburn: thanks. Yield back.
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11:26 AM
Schumer: you headed up corruption unit before. When political considerations become enmeshed, justice suffers...ensure that public officials do not corrupt investigations.
Schumer: if you found out that pol pushed a USAtty to pursue a case against a Democratic official? Would you confront white house official?
Muk: I'd react negatively. I'd talk to USAtty. If confirm interference, I'd inform Pres. I'd make certain that the pressure/effect was undone. e.g. take over the investigation by someone from Main Justice that was NOT involved.
Schumer: troubling allegations that such behaviour DID occur in past. In Alabama, there was a recent prosecution of Gov Siegelman. Allegations that his case was selectively prosecuted. Jill Simpson swore under oath that Rove pushed DoJ to bring corruption charges against Siegelman. Son of current Gov would "hang" Don Siegelman. When case faltered, demanded prosecutors "Take another look at everything"; Given what we've seen at DoJ, I've read about this, it greatly troubles me that perhaps, perhaps, perhaps this case was politically brought. Not accusing anyone of anything. But I'd like YOU to learn the facts and report back. As good as your intentions are, can't have a proper housecleaning w/o removing doubts. Ask you to personally look into Siegelman matter.
Muk: not sure what stage case is at...on appeal?
Schumer: convicted, but still may be on appeal. Serving time in fed prison now.
Muk: might be that first cut at facts ought to be had by the court; not unheard of for promotion of appelate court...
Schumer: any of these facts came out AFTER trial, might not be admissable before court of appeals.
Muk: when a case is in the process...
Schumer: would you take a look at---if there is a possibility---after the appeal, especially if there's no remand or new facts aren't admissable, would you be willing to take a look at this?
Muk: yes.
Schumer: disproportionate pros of Democrats. Donald Shields and John Cragan studied prosecutions: two professors compiled database of 375 indictments of USattys, Democrats investigated 7X as often as Repub ones. I ask you to take personal look at this study and if it has merit, take a study of your own.
Muk: will take a look at study.
Schumer: I hope you become AG.
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11:40 AM
Sen. Grassley: whistleblower cases--the need to worry is b/c great deal of pressure to go along to get along in government. WBs need to have laws that protect them. What initial action would you personally take to abate any fears of retaliation against WB in DoJ?
Muk: tell people that I am receptive to and supportive of anyone who can disclose any impropriety and help gov stop impropriety and stop waste.
Grassley: let me tell you, one time I told Pres that you oughta have a Rose Garden ceremony for WBs and I got a comment like "if he did that, every nut would come out of the woodwork" (WTF?!) With that sort of attitude at the top, very NB at level of AG that the spirit of the law carried out, as well as the law.
Grassley: learned OIG used overly broad non-disclosure form, investigation of FBI misuse of NS letters. This is not a threat to be taken lightly, particularly from OIG/FBI. While non-disclosure agreements NB, members should still be able to communicate w/Congress. Should have disclaimer ensuring that employees are NOT cutoff from Congress. Forms do not have disclaimers under Section 820. IG said FBI routinely using broad non-disclosure forms, in violation of 820. Would you investigate? W/o disclaimer, it's a "thumbing the nose" at Congress. No respect for the law!
Muk: the only way we respect legit claims if we don't promiscuously attach the phrase "National Security" to everything we want to discuss. Have to be careful...believe that oversight authority is enormously important for the DoJ to perform its role. Need to use disclosure agreements properly.
Grassley: info oughta be broadly reminded as part of a document (info in 820)
Grassley: Oversight's very NB. Need strong IGs, other independent assessments. Do you agree that independence is the hallmark of IG effectiveness?
Muk: I do.
Grassley: what relationship would you have to IG Glenn Fine? FBI IG?
Muk: hope to have cordial and effective relationship w/Fine et al. His views get a lot of respect, including from me.
Grassley: earlier, Fine released report on FBI NS Letters, containing "false statements" or improperly classifying them as "emergency" letters. OIG conducted further invest jointly w/FBI, but it seems like actively allowing FBI to participate could undermine credibility of overall investigation of ITSELF. Do you believe consistent with IG independence?
Muk: agree that having agency investigate itself is strange, but among preliminary conclusions of IG report was that there were no controls, no monitoring in place. A form in one place was sent around, nobody bothered reading it, no grand jury, etc. When saw that report, the FBI put controls and monitoring in place. Given that response, we oughta give those controls credit...
Grassley: hope you're right. Mr. Chairman, I won't be here for 3rd round. Will submit written questions about agricultural anti-trust later. Thank you.
Leahy: regarding IG, he is reviewing testimony of your predecessor (Gonzo) b/c some answers not truthful; also reviewing testimony of others. Do I have your assurance that you will not interfere?
Muk: you do.
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11:55 AM
Durbin: regarding Bradbury, warrantless wiretap, why was the investigation by OPR not completed? I will hold Bradbury's nomination till I know why clearances weren't granted to OPR to investigate.
Durbin: immigration issues. In Chicago, chief of police has made decision to give confidentiality to witnesses/victims re: status, in order to encourage cooperation in violent crime investigations; other big cities have reached similar conclusions. Imm law federal in nature but decisions are state/local for confidentiality agreements. What is your opinion on these confidentiality policies?
Muk: mayor of a city, gov of state (exec) have to answer to constituents of their locality/state and have to use their own good judgement. Can't take principle like 'not tolerate illegal imm' over a cliff. (??) Can't say 'we're gonna let children starve b/c their parents are not lawfully here'; I'm very sympathetic to that, and loath to second-guess them. Won't second guess as AG. Might suggest policy in either direction, but diff from saying "sacrifice welfare" of people in jurisdiction b/c immigration a hot-button issue.
Durbin: federal responsibility?
Muk: principally.
Durbin: regarding race, reducing tension btwn white and African Americans. Jarden vs. ??? (SP?) Judge refused defense atty right to "Batson Challenge" and you denied Habeas challenge. On reflection, do you feel you overlooked purposeful discrimination in the selection of jurors?
Muk: one element in my consideration was deference to state crt. Had a hearing, went through each juror struck and reasons given. Batsen challenge rejected. Agree that people need opportunity to make a record. If I hadn't given them opportunity, I'd regret it.
Durbin: torture, Geneva...waterboarding, sleep deprivation, [listing techniques used]. When JAG testified, they said these techniques violated Geneva. Your opinion?
Muk: not gonna argue w/JAG opinion. (long pause) That said, also recognize when we're talking about coersive methods of interrogation; not pleasant v. unpleasant, it's rather a choice "among bad alternatives." JAG enormously well disciplined and skilled, but this is experience with captured MILITARY people. Different from unlawful combatants. "Very different kind of person"
Durbin: arguing that if techniques used BEFORE current threat of terrorism, it would be diff from today?! Can you clarify?
Muk: not sure. Not sure I can clarify.
Durbin: you said JAG, speaking about spec methods and Geneva, that they were referring to previous times and previous conflicts?
Muk: not sufficiently familiar w/Geneva to comment what techniques would apply. Specifically talking bout Army Field Manual w/JAG. There are "other techniques" that can be used w/authorization that are NOT covered by Field manual.
Durbin: if violate Common Article III, the Sup Crt agreed w/Hamdan and said these apply to EVERYONE
Muk: (confused) I can't recall precisely what part of Article III the SC found applicable. Thought they were referring to detainee getting a hearing (he's confused w/Hamdi?)
Durbin: want to understand whether YOU believe they would constitute torture
Muk: can't responsibly talk about any technique...Here...can't discuss when people who are using coercive techs, something put their careers at risk.
Durbin: on issue of waterboarding: the US took position that it's a WARCRIME. In 1901, 10 yrs of hard labour to a gyu who did it to a man from the Philippines; ditto for a 1968 case.
Muk: not constitutional.
Leahy: you said "unless it is authorized"...can techniques be authorized, even if they're not constitutional?
Muk: no. Saying if they're not in Army Field Manual, can be authorized...
Leahy: but you say law says torture not allowed, how can be authorized?
Muk: if not constitutional, can't be authorized. Nuremberg defense not applicable.
Leahy: so if something violates that statute, that authorization is illegal?
Muk: correct
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12:03 PM
Whitehouse (D-RI): is waterboarding constitutional?
Muk: if it's torture, then it is.
Whitehouse: massive hedge. It is or it isn't. It's the practice of simulating the feeling of drowning. Is that constitutional?
Muk: if it amounts to torture, it is not.
WH: massively disappointed in that answer.
WH: comes from officers who conducted interrogations, literally 1000s prisoners, adviser during OIF---I asked him if you should go beyond AFM? "Sen, I've been waiting 20 yrs to answer it. The answer is absolutely not...key is accurate, useful information...developing operational accord..." E.g. of intel gathering of scud sites in Iraq, ind'l interrogated said "I was told you were animals." "You treated me with respect" and ind'l was pleased to cooperate. The spirit/approach was "relationship-based approach"...following "guidance of AFM, I feel unconstrained (in 22 yrs of experience)." Diff btwn compliance v. cooperation. Compliance creates propaganda, particularly via torture. "Are we trying to produce compliance or cooperation"
WH: I hope you will consider widely held view of professionals who feel techniques are not only wrong, but ineffective.
WH: I urged you to consider my two questions from yesterday. Some formal process of review of internal norms, practices, so that you get a report on what needs to be repaired.
Muk: will pledge to consult people in and outta DoJ. "Formal" process I can't commit to now. If it is necessary, will consider that.
WH: finally, in the event you're AG, do you believe you'll be working for the people or the Pres of USA?
Muk: working for people. See no antithesis w/working in Pres's cabinet. I will serve "at his pleasure." That said, my oath is to uphold consti'tn.
WH: distinction btwn appointing authority and duties of that position---your predecessor failed to see it.
Muk: won't criticize predecessor.
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12:05 PM
Sen. Cardin: if person has violated torture statute, constitution, even if working under authority of Pres, you would move to hold that person accountable?
Muk: yes...after reviewing facts of that case.
Cardin: not a trick question. You've been clear about unconstitutionality of torture; 2nd point...in response to Sen. Wh's questions...you're going to be advising our Pres, our DoD, our agencies about your ind't judgement about what constitutes torture. You can't use what Pres wants..
Muk: that is correct. And now I'd like to request a short break.
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12:18 PM
Cardin: will you make sure there are adequate resources to deal with problem of Voter SUPPRESSION?
Muk: I will.
Cardin: I appreciate problem of Voter Fraud, too... (??)
Muk: not trying to be "cute" with that answer.
Cardin: urge you to give resources and services. With Jena, it took over a year to pay any attn to problems in Louisiana
Muk: Ok.
Cardin: regarding racial/ethnic profiling, it's been used for ages in USA, immigrants interred in WWII. More recently, actions by law enforcement to use profiling. Not what America stands for.
Muk: It is not what America stands for. Singling out groups when law enforcement conducted is not consistent w/system that evaluates each person ind'ly.
Cardin: Disparate case issues, e.g. neg impact of race on housing, employment etc. There's been less attn to such cases recently, so I want your assessment. On the surface some of these issues appear neutral, but aren't.
Muk: if impact on one group is very diff than another, have to take a close look.
Cardin: thank you. Among career attys in DoJ, there's tremendous experience in this area and they're frustrated it hasn't got enough attn by higher-ups in DoJ. Thanks.
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12:23 PM
Leahy: Specter is away working on a Bill but he'll return at 2pm. He wants another round.
Leahy: Sen Cornyn and I are both worried about Bush abuse of secrecy, w/holding info under FOIA. Will you commit to review and consider overturning some of these policies? Will you look at Leahy/Cornyn proposed legislation? Bipartisan support for this...
Muk: Yes. FOIA enhanced democracy.
Leahy: I'm concerned that, in a #your answers yesterday, there was a bright line concerning torture. Today, there's nowhere near as bright a line. You're a lawyer from a big city, and "I"m just a lawyer from a small state like Vermont," but I sense a difference and a #people here have sensed a difference and I wanna make sure that we followup.
Muk: I just had dinner with my family last night (i.e. no interference from outsiders last night). Did the things that were presented to me seem over the line to me? Of course they did. They were intended to be that way. It's not so much the techniques, but the next question, and the next question...
Leahy: I'm concerned that you leave some opening that diff parts of our gov will be held to diff standards. Carefully choosing my words, b/c we're in open session.
Leahy: we stand in Recess until 2PM.
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Photo credit: Smialowski/Bloomberg, via NY Daily News
NOTES: (a) this is not a transcript! Time 'stamps' indicate the time of posting.
(b) "Muk" refers to Michael Mukasey ;)
(c) First compiled on this message board, with the help of skdadl, my partner in all-things-Harrison-Ford ;)
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10:24 AM
Leahy: Regarding subpoenas for WH staff, executive privilege, and contempt citations, you indicated that you would undertake an independent analysis...
Muk: When the WH gets a subpoena, they refer it to the DoJ, as happened here (letter from Clement); if WH then, relying on that letter, relying on the DoJ, and there is nonetheless a contempt citation, we're in the position where the DoJ had to prosecute someone who followed the advice of the DoJ; there are 2 opinions: Ted Olson and...I can't remember the other (2 OLC opinions saying that for the USAtty to prosecute for contempt based on reliance on an opinion letter originating from the DoJ would not be appropriate).
Leahy: some of these things are ex post facto; some have not used privilege before, but all of a sudden they're called before cmtee and then use privilege--isn't that difft? Issue comes up after the fact?
Muk: basis for assertion has to include opinions of DoJ; hard to envision that the WH would seek the view of the DoJ before they took any position on privilege; unless someone went off on a "tear"...
Leahy: some of these claims are extremely broad: "Pres never interacted with me but I'm claiming exec privilege..." for e.g.
Muk: that sounds broad, but I think exec privilege covers more than direct communication; current litigation, national security, etc.
Leahy: last July when the HJC was considering contempt for *former* WH official, someone in admin said USAtty was *not* permitted to argue against legal opinion provided by Dept. What do you do in a case like that?
Muk: 2 OLC opinions Walter Bellinger (NOTE: I think he means John. B. Bellinger) and Ted Olson say that when Pres asserts privilege is relying on DoJ opinion, it can't be appropriate for same Dept to issue contempt...
Leahy: how does battle with UScongress get resolved?
Muk: don't know. Grand jury? Don't want to start parsing words...
Leahy: I'll spell out more clearly with you, but I want your answer in writing.
Leahy: Congress has clearly legislated in are relating to FISA; if it's stated very clearly what must be done; if you operate outside of that, wouldn't it be illegal?
Muk: depends on whether what goes outside statute, nevertheless still w/in Pres authority.
Leahy: but where does Pres get this authority? e.g. ask FBI to raid 25 houses, not waiting for courts, there's no urgency, we just "kind of like to do that"
Muk: "kind of like to do that" is not any kind of assertion of authority; the statute, regardless can't change constitution
Leahy: can Pres put someone above the law by authorizing illegal conduct?
Muk: contrary to statute but w/in authority to defend country, then Pres is putting someone *within* the law
Leahy: I see a loophole big enough to drive a truck through. We'll come back to this.
*SKDADL NOTES*
Leahy was unintentionally kicking a photographer sitting on the floor in front of him yesterday .
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10:30 AM
Specter: Pres can authorize torture?
Muk: no, b/c torture is barred by the constitution.
Specter: where in const?
Muk: by 5th, 14th and 8th amendment; bars conduct that "shocks the conscience"
Specter: regarding FISA: exclusive procedure is to get a warrant, having probable cause; was Pres permitted to violate FISA b/c Article II powers or did he violate the law?
Muk: not sure what violation we're talking about...TSA?
Specter: warrantless wiretaps. Pres violated FISA. Is it justifiable b/c Article II.
Muk: I understand that Pres believes that FISA wasn't only applicable statute; that he was acting under AUMF 2001
Specter: I don't think anyone ever seriously intended that our AUMF justified violating FISA
Specter: Steve Bradbury, some members of cmtee have asked that his nomination be withdrawn; I believe he ought to be confirmed. The acts on Bradbury's part were carrying out Pres's orders. AG Gonzo, when we had issue of OPR see if TSA was properly authorized; Gonzo said Pres's decisions. Bradbury in June and July, there was considerable discussion of telecom corpse resposnsibilities. Moving to subpoenas when Cheney talked to cmtee members w/o talking to me. Here's my letter to Cheney in summer. Following my letter, Bradbury and my staff had convos about TSA and putting it under the FISC. He was competent, professional and able. Candid and unusually so for DoJ (*snerk*). Lead to meeting w/Pres Bush, who agreed to support the legislation. My staff and I had worked this out w/Bradbury. I think he was A+. He oughta be confirmed.
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10:41 AM
Specter: Reporters privilege...the majority of reporters subpoenaed go to jail. Judith Miller was kept in jail for 85 days. Ms Plame did not qualify to make it a National Security matter (Armitage was the leaker and everyone knew (Grrrr! Not this again!)...this matter will be coming up and we're pushing for floor action. The question: there's an exception of National Sec. Matter for judge to decide whether disclosure outweighs national sec privilege. Issues very complex, but in our system it's up to fed judges to make decision. I want your views on the subject. Importance of news gathering which has exposed corruption, etc. Quotes Jefferson..."newspapers w/o government"...
Specter: what do you think?
Muk: have my own history of representing reporters, e.g. successful NY shield law. Sounds innocuous, but I have some anxiety about National Security matters...first of all, it's not always possible to show what the outcome is gonna be from disclosure of info. E.g. list of al Qaeda co-conspirators. Ramsi Yousef case, where someone testified about delivery of cell-phone battery to someone else. Disclosed that a line of communication had been compromised. Shut down w/in days of that testimony. Nobody knows what we lost. It's imponderable. Second: fed judges don't have training, resources that NDI has to weigh issues like that. They rely on law clerks and what's submitted to them. That's enough in most cases, e.g. make appeal, decision reversed. Stakes much higher with National Security. Separate question: who's a journo? We talked about that yesterday. I have misgivings. The Plame case? Bad cases can make hard law...
Specter: just an assertion of National Security is too much of a blanket authority. Help search for a way.
Leahy: you said Pres couldn't authorize torture, b/c against the law but you told us that Pres could authorize/bring-others-into law w/surveillance. How is that? Provisions of search and seizure?
Muk: 4th says we're protected from S&S but goes on to say... e.g. we are all searched at airport w/o warrant.
Leahy: but we have a choice. We don't get on a plane. But w/email, don't know for years that we've been searched and specific law has been violated. How can pres say "that's National Sec, authorize telecom to clearly violate statute"...why can't he do the same thing on torture?
Muk: telephone records have never been protected by 4th, b/c belong to company
Leahy: but the conversations are protected. Their lives could be ruined, jobs lost, and so on. We should come back to this, b/c you can't say we have a clear statute in some cases (torture) but Pres can do it in others.
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10:52 AM
Sen. Feinstein: this aft we're marking up a very big bill. Yesterday, the House bill fell apart. Much of the commendation of the House Intel cmtee, the bill is bipartisan.
Feinstein: the TSA could have been w/in the law from the very beginning. The formulation of an 11 judge FISC, sitting 24-7...guarantee of law to the greatest extent we possibly can. I read Church report (1978 post FISA bill) which outlines major historic trend to essentially take Foreign Intel, exploit loopholes and use propaganda domestically. There's a real need for a FISA that we can say to US people is the *exclusive* authority.
Feinstein: quoting you, "in the area where authority left off (FISA) and Pres would have the authority to act, there's very scant if any case law if intel gathering for criminal cases, something might be more flexible than gathering of intel." But there is very fulsome evidence, that every effort was made 1978 that electronic surveillance be under law. You mentioned AUMF: there was NO intent to allow Pres to wiretap outside of the law. It never came up. I sent Pg. 101 of report on FISA bill (reading). FISC prohibits Pres, notwithstanding any powers, from violating any of these statutes. They repealed that section. Expressly repealed them. The FISA does not need Pres powers where it finds them. Subs a clear, legislative authorization. Appropriate to repeal section, suggesting that the statutory std was not the exclusive standard for surveillance included therein.
Feinstein: AUMF did not expressly grant, nor was it contemplated that he would use that do go outside of FISA. He did not HAVE to go outside FISA. What bothers me is that you, yesterday, sustained that gap, and I hope what we do is close that gap with this new bill.
Muk: if Pres can act w/in FISA, then that is where he has to act. I don't want to look for areas of disagreement, but, the only place we might is in the view: notwithstanding the Congress saying specifically, we are restricting the Pres's authority under the constitution. Whether a past Congress said "we acknowledge that the Pres might have authority beyond the statute"...to repeal that won't change constit'l reality. If it was always poss for Pres to act w/in FISA, there's no need to go beyond. There are procedures approved, w/o going for separate warrants for e.g.
Feinstein: admin didn't TRY to do that before the heat got very hot, then they went and did it. That's the reason FISA should be exclusive authority...the 4th amendment *does* come into play. You have two butting amendments, perhaps, but when you list the AUMF, I think the history contradicts.
Leahy: the AUMF is the weakest reason. The intel cmtee can't cave on this, put pressure on this cmtee to authorize illegal conduct. There's pressure to immunize illegal conduct.
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11:00 AM
Sen. Kyl (R-Arizona): retroactive liability, there could be a chilling effect on telecoms if we don't protect them from potential suit (Awww....poor babies); to agree w/Sen. Specter on his comments viz Steve Bradbury (Rolling mah eyes)
Kyl: reporters Shield law, to correct the record wrt one thing Specter said; from DoJ's own report, #s demo a decrease in subpoenas in recent years. In 19 source-related matters, only 4 have been approved. There are almost NO cases in which reporters have gone to jail.
Kyl: want your insights as well about Shield law
Muk: there are w/in DoJ, very elaborate procedures before anyone can subpoena a reporter. Some AUSatty w/subpoena and typewriter can't just issue to a reporter...has to be "Main" Justice dept. If you need to change internal regs, can change standards pretty easily. Much harder when it's actually in stone, in legislation.
Kyl: your job as AG is to enforce law, ensure safety, prevent/control crime, seek punishment, seek fair/impartial admin of justice. Interesting that people who have worked with you in these various capacities have been impressed with you...suggesting that in your position as AG, you'd carry on (blah blah blah)
Kyl: Mary Jo White commented that in the Blind Sheikh case, "DoJ is very lucky to get [Mukasey]"...your reputation fits in very tightly with your prospective responsibilities as AG.
(Kyl is having a lovefest)
Kyl: do you have any insights for us as to how you view your job? Huge challenges from terrorism, etc.
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11:11 AM
Feingold: over night you've gone from being agnostic, to holding a rather disturbing view: Pres might violate statute if he wants to use Article II. Are you telling us that anytime Pres wants to act against a National Sec threat, he can violate a statute?
Muk: I recognize force of Just. Jackson's three step approach, but I recognize that each branch has its own authority. E.g. You have exclusive authority to vote me up or down for any reason or no reason. If I'm displeased with result, I could not file a lawsuit claiming I was denied a right, even if I got a judge that was sympathetic. The authority belongs only to you. There are areas of Pres'l authority. We're not dealing with areas of necessarily black & white. Very important that push NOT come to shove.
Feingold: Youngstown case, they DID have right to go to court and they won. Jackson's 3 part thing. So this troubles me and I have great respect for you, but this area is the MOST NB one where repairing has to be done. Getting away from ever-expanding article II power.
Feingold: death penalty. Gonzo refused to speak personally, wanted death penalty and refused to speak personally w/USAtty involved, and yet used this reason as the one for dismissal. How involved would you be?
Muk: there's no analogous penalty. That means I'm gonna review every such case in excruciating detail. Dept of J tried to assure that death penalty seek/noseek depends only of facts of the case, history of defendant, cruelty...
Feingold: will you refuse to speak to USAtty that disagrees with you?
Muk: difficult to say. Defendant's crime might be no better, background no better where USAtty more accustomed to death penalty...system was supposed to treat two people same way.
Feingold: why not speak w/USAtty?
Muk: would want USAtty's views made known to me. Some have good & conscientious reasons for not seeking DP.
Feingold: should add'l cost of DP be taken into consideration?
Muk: uh...among other considerations.
Feingold: GLBT serving honourably in DoJ. Ashcroft/Gonzo refused to hold DoJ Pride events; prohibited from advertising events at DoJ. Refused to recruit at GLBT atty groups, though WILL advertise at other minority atty meetings. Will you stop the mistreatment?
Muk: don't understand this treatment. I never took orientation into acct in my previous career.
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11:18 AM
Sen. Tom Coburn (R-BatCrapCrazy...er...Oklahoma): what will you do to ensure that "loyalty to constitution" will be carried out at DoJ?
Muk: lead by example. Make certain that, if there is a problem that would compromise constitutional std, to get into it up to my elbows and help. I've never managed anything this large (huge DoJ) but I have had a hands-on management style, and I want to continue that. Don't want to be caught by surprise.
Coburn: DoJ unique in that it's the only agency that's allowed a %ge of balance at end of year to spend on IT etc. We recently passed limitation on conferences, spec to certain groups (unindicted co-conspirators) and real concern about money spent on conferences. Can you control this? A real conservative concern about your budget.
Muk: I emphatically agree with that. I did not attend many conferences. Not a fan of publicly funded 'get togethers'
Coburn: concerned about morale at DoJ. We have impacted that by the controversies, real or otherwise. What is your plan to bring "esprit de corps" back to DoJ?
Muk: don't want by my words or actions to create self-fulfilling prophesy, where talking about bad morale creates bad morale. ...
Coburn: thanks. Yield back.
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11:26 AM
Schumer: you headed up corruption unit before. When political considerations become enmeshed, justice suffers...ensure that public officials do not corrupt investigations.
Schumer: if you found out that pol pushed a USAtty to pursue a case against a Democratic official? Would you confront white house official?
Muk: I'd react negatively. I'd talk to USAtty. If confirm interference, I'd inform Pres. I'd make certain that the pressure/effect was undone. e.g. take over the investigation by someone from Main Justice that was NOT involved.
Schumer: troubling allegations that such behaviour DID occur in past. In Alabama, there was a recent prosecution of Gov Siegelman. Allegations that his case was selectively prosecuted. Jill Simpson swore under oath that Rove pushed DoJ to bring corruption charges against Siegelman. Son of current Gov would "hang" Don Siegelman. When case faltered, demanded prosecutors "Take another look at everything"; Given what we've seen at DoJ, I've read about this, it greatly troubles me that perhaps, perhaps, perhaps this case was politically brought. Not accusing anyone of anything. But I'd like YOU to learn the facts and report back. As good as your intentions are, can't have a proper housecleaning w/o removing doubts. Ask you to personally look into Siegelman matter.
Muk: not sure what stage case is at...on appeal?
Schumer: convicted, but still may be on appeal. Serving time in fed prison now.
Muk: might be that first cut at facts ought to be had by the court; not unheard of for promotion of appelate court...
Schumer: any of these facts came out AFTER trial, might not be admissable before court of appeals.
Muk: when a case is in the process...
Schumer: would you take a look at---if there is a possibility---after the appeal, especially if there's no remand or new facts aren't admissable, would you be willing to take a look at this?
Muk: yes.
Schumer: disproportionate pros of Democrats. Donald Shields and John Cragan studied prosecutions: two professors compiled database of 375 indictments of USattys, Democrats investigated 7X as often as Repub ones. I ask you to take personal look at this study and if it has merit, take a study of your own.
Muk: will take a look at study.
Schumer: I hope you become AG.
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11:40 AM
Sen. Grassley: whistleblower cases--the need to worry is b/c great deal of pressure to go along to get along in government. WBs need to have laws that protect them. What initial action would you personally take to abate any fears of retaliation against WB in DoJ?
Muk: tell people that I am receptive to and supportive of anyone who can disclose any impropriety and help gov stop impropriety and stop waste.
Grassley: let me tell you, one time I told Pres that you oughta have a Rose Garden ceremony for WBs and I got a comment like "if he did that, every nut would come out of the woodwork" (WTF?!) With that sort of attitude at the top, very NB at level of AG that the spirit of the law carried out, as well as the law.
Grassley: learned OIG used overly broad non-disclosure form, investigation of FBI misuse of NS letters. This is not a threat to be taken lightly, particularly from OIG/FBI. While non-disclosure agreements NB, members should still be able to communicate w/Congress. Should have disclaimer ensuring that employees are NOT cutoff from Congress. Forms do not have disclaimers under Section 820. IG said FBI routinely using broad non-disclosure forms, in violation of 820. Would you investigate? W/o disclaimer, it's a "thumbing the nose" at Congress. No respect for the law!
Muk: the only way we respect legit claims if we don't promiscuously attach the phrase "National Security" to everything we want to discuss. Have to be careful...believe that oversight authority is enormously important for the DoJ to perform its role. Need to use disclosure agreements properly.
Grassley: info oughta be broadly reminded as part of a document (info in 820)
Grassley: Oversight's very NB. Need strong IGs, other independent assessments. Do you agree that independence is the hallmark of IG effectiveness?
Muk: I do.
Grassley: what relationship would you have to IG Glenn Fine? FBI IG?
Muk: hope to have cordial and effective relationship w/Fine et al. His views get a lot of respect, including from me.
Grassley: earlier, Fine released report on FBI NS Letters, containing "false statements" or improperly classifying them as "emergency" letters. OIG conducted further invest jointly w/FBI, but it seems like actively allowing FBI to participate could undermine credibility of overall investigation of ITSELF. Do you believe consistent with IG independence?
Muk: agree that having agency investigate itself is strange, but among preliminary conclusions of IG report was that there were no controls, no monitoring in place. A form in one place was sent around, nobody bothered reading it, no grand jury, etc. When saw that report, the FBI put controls and monitoring in place. Given that response, we oughta give those controls credit...
Grassley: hope you're right. Mr. Chairman, I won't be here for 3rd round. Will submit written questions about agricultural anti-trust later. Thank you.
Leahy: regarding IG, he is reviewing testimony of your predecessor (Gonzo) b/c some answers not truthful; also reviewing testimony of others. Do I have your assurance that you will not interfere?
Muk: you do.
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11:55 AM
Durbin: regarding Bradbury, warrantless wiretap, why was the investigation by OPR not completed? I will hold Bradbury's nomination till I know why clearances weren't granted to OPR to investigate.
Durbin: immigration issues. In Chicago, chief of police has made decision to give confidentiality to witnesses/victims re: status, in order to encourage cooperation in violent crime investigations; other big cities have reached similar conclusions. Imm law federal in nature but decisions are state/local for confidentiality agreements. What is your opinion on these confidentiality policies?
Muk: mayor of a city, gov of state (exec) have to answer to constituents of their locality/state and have to use their own good judgement. Can't take principle like 'not tolerate illegal imm' over a cliff. (??) Can't say 'we're gonna let children starve b/c their parents are not lawfully here'; I'm very sympathetic to that, and loath to second-guess them. Won't second guess as AG. Might suggest policy in either direction, but diff from saying "sacrifice welfare" of people in jurisdiction b/c immigration a hot-button issue.
Durbin: federal responsibility?
Muk: principally.
Durbin: regarding race, reducing tension btwn white and African Americans. Jarden vs. ??? (SP?) Judge refused defense atty right to "Batson Challenge" and you denied Habeas challenge. On reflection, do you feel you overlooked purposeful discrimination in the selection of jurors?
Muk: one element in my consideration was deference to state crt. Had a hearing, went through each juror struck and reasons given. Batsen challenge rejected. Agree that people need opportunity to make a record. If I hadn't given them opportunity, I'd regret it.
Durbin: torture, Geneva...waterboarding, sleep deprivation, [listing techniques used]. When JAG testified, they said these techniques violated Geneva. Your opinion?
Muk: not gonna argue w/JAG opinion. (long pause) That said, also recognize when we're talking about coersive methods of interrogation; not pleasant v. unpleasant, it's rather a choice "among bad alternatives." JAG enormously well disciplined and skilled, but this is experience with captured MILITARY people. Different from unlawful combatants. "Very different kind of person"
Durbin: arguing that if techniques used BEFORE current threat of terrorism, it would be diff from today?! Can you clarify?
Muk: not sure. Not sure I can clarify.
Durbin: you said JAG, speaking about spec methods and Geneva, that they were referring to previous times and previous conflicts?
Muk: not sufficiently familiar w/Geneva to comment what techniques would apply. Specifically talking bout Army Field Manual w/JAG. There are "other techniques" that can be used w/authorization that are NOT covered by Field manual.
Durbin: if violate Common Article III, the Sup Crt agreed w/Hamdan and said these apply to EVERYONE
Muk: (confused) I can't recall precisely what part of Article III the SC found applicable. Thought they were referring to detainee getting a hearing (he's confused w/Hamdi?)
Durbin: want to understand whether YOU believe they would constitute torture
Muk: can't responsibly talk about any technique...Here...can't discuss when people who are using coercive techs, something put their careers at risk.
Durbin: on issue of waterboarding: the US took position that it's a WARCRIME. In 1901, 10 yrs of hard labour to a gyu who did it to a man from the Philippines; ditto for a 1968 case.
Muk: not constitutional.
Leahy: you said "unless it is authorized"...can techniques be authorized, even if they're not constitutional?
Muk: no. Saying if they're not in Army Field Manual, can be authorized...
Leahy: but you say law says torture not allowed, how can be authorized?
Muk: if not constitutional, can't be authorized. Nuremberg defense not applicable.
Leahy: so if something violates that statute, that authorization is illegal?
Muk: correct
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12:03 PM
Whitehouse (D-RI): is waterboarding constitutional?
Muk: if it's torture, then it is.
Whitehouse: massive hedge. It is or it isn't. It's the practice of simulating the feeling of drowning. Is that constitutional?
Muk: if it amounts to torture, it is not.
WH: massively disappointed in that answer.
WH: comes from officers who conducted interrogations, literally 1000s prisoners, adviser during OIF---I asked him if you should go beyond AFM? "Sen, I've been waiting 20 yrs to answer it. The answer is absolutely not...key is accurate, useful information...developing operational accord..." E.g. of intel gathering of scud sites in Iraq, ind'l interrogated said "I was told you were animals." "You treated me with respect" and ind'l was pleased to cooperate. The spirit/approach was "relationship-based approach"...following "guidance of AFM, I feel unconstrained (in 22 yrs of experience)." Diff btwn compliance v. cooperation. Compliance creates propaganda, particularly via torture. "Are we trying to produce compliance or cooperation"
WH: I hope you will consider widely held view of professionals who feel techniques are not only wrong, but ineffective.
WH: I urged you to consider my two questions from yesterday. Some formal process of review of internal norms, practices, so that you get a report on what needs to be repaired.
Muk: will pledge to consult people in and outta DoJ. "Formal" process I can't commit to now. If it is necessary, will consider that.
WH: finally, in the event you're AG, do you believe you'll be working for the people or the Pres of USA?
Muk: working for people. See no antithesis w/working in Pres's cabinet. I will serve "at his pleasure." That said, my oath is to uphold consti'tn.
WH: distinction btwn appointing authority and duties of that position---your predecessor failed to see it.
Muk: won't criticize predecessor.
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12:05 PM
Sen. Cardin: if person has violated torture statute, constitution, even if working under authority of Pres, you would move to hold that person accountable?
Muk: yes...after reviewing facts of that case.
Cardin: not a trick question. You've been clear about unconstitutionality of torture; 2nd point...in response to Sen. Wh's questions...you're going to be advising our Pres, our DoD, our agencies about your ind't judgement about what constitutes torture. You can't use what Pres wants..
Muk: that is correct. And now I'd like to request a short break.
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12:18 PM
Cardin: will you make sure there are adequate resources to deal with problem of Voter SUPPRESSION?
Muk: I will.
Cardin: I appreciate problem of Voter Fraud, too... (??)
Muk: not trying to be "cute" with that answer.
Cardin: urge you to give resources and services. With Jena, it took over a year to pay any attn to problems in Louisiana
Muk: Ok.
Cardin: regarding racial/ethnic profiling, it's been used for ages in USA, immigrants interred in WWII. More recently, actions by law enforcement to use profiling. Not what America stands for.
Muk: It is not what America stands for. Singling out groups when law enforcement conducted is not consistent w/system that evaluates each person ind'ly.
Cardin: Disparate case issues, e.g. neg impact of race on housing, employment etc. There's been less attn to such cases recently, so I want your assessment. On the surface some of these issues appear neutral, but aren't.
Muk: if impact on one group is very diff than another, have to take a close look.
Cardin: thank you. Among career attys in DoJ, there's tremendous experience in this area and they're frustrated it hasn't got enough attn by higher-ups in DoJ. Thanks.
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12:23 PM
Leahy: Specter is away working on a Bill but he'll return at 2pm. He wants another round.
Leahy: Sen Cornyn and I are both worried about Bush abuse of secrecy, w/holding info under FOIA. Will you commit to review and consider overturning some of these policies? Will you look at Leahy/Cornyn proposed legislation? Bipartisan support for this...
Muk: Yes. FOIA enhanced democracy.
Leahy: I'm concerned that, in a #your answers yesterday, there was a bright line concerning torture. Today, there's nowhere near as bright a line. You're a lawyer from a big city, and "I"m just a lawyer from a small state like Vermont," but I sense a difference and a #people here have sensed a difference and I wanna make sure that we followup.
Muk: I just had dinner with my family last night (i.e. no interference from outsiders last night). Did the things that were presented to me seem over the line to me? Of course they did. They were intended to be that way. It's not so much the techniques, but the next question, and the next question...
Leahy: I'm concerned that you leave some opening that diff parts of our gov will be held to diff standards. Carefully choosing my words, b/c we're in open session.
Leahy: we stand in Recess until 2PM.
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Photo credit: Smialowski/Bloomberg, via NY Daily News
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