US Attorney Gen. Michael B. Mukasey is testifying before the Sen. Judiciary Committee today. Both skdadl and I have been following his testimony as closely as our c-span streaming abilities will allow. The following is a collection of our notes from this morning's testimony. The hearing will resume at 2PM EST.
***Note: "WB" stands for waterboarding. How said is it that we use this term often enough to warrant abbreviation?! Also: this is NOT a transcript. Time-stamps are approximate. Some notes are skdadl's, and some are mine :)
UPDATE [Jan 31, 2008, 3:27 PM]: I have cleaned up our notes from yesterday and annotated with links, as appropriate. Hope you find these useful!
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10:10
Sen. Pat Leahy (D-Vermont, Chairman) is making his opening statement--Sens. Kennedy & Specter have co-sponsored legislation to reign in this president regarding torture, rendition etc.
"No one is more eager than I to see our new AG" repair damage inflicted "on our constitution, civil liberties"
(sorry...missed first few mins)
10:11 AM
Sen. Arlen Specter (R-Pennsylvania, Ranking Member; opening statement): Sen Leahy talks about the expansion of executive power, and I think that's been the case. No one is above law, but when the president institutes a warrantless surveillance program (hiding behind state-secrets)...changes constitutional authority of president? The courts have not yet ruled on that subjects.
Specter: Waterboarding--your views (Mukasey) are important, but the Senate considered this issue Sep 26, and voted 53-46 to ban waterboarding. I was among them--I figure waterboarding oughta be banned, and that it's torture. But that's not the issue... (stream cut out)
Specter: could draw statute much more narrowly. The issue is tantamount to learned opinion of Israaeli Supreme Crt, where, in extenuating circumstances, could allow torture. State should not be helpless...could be authorized to use these interrogation methods...obligation of state to defend itself. Same view expressed by Schumer, 2004 (NOTE, Schumer said, "We are in a brave new world"), and by academics, and by former Deputy Attorney General Phil Heymann
Specter: time to get beyond just your view, Mr. AG, as Senate should consider this subject. Also, whether CIA should be limited by Army Field Manual. It's a violation of international law, but could be another area where President has Article II power? Constitutional law is balancing phase...eg. first amendment, and 4th...Congress is well advised that the President oughta do what's in his power.
Specter: Other issues I want to cover...reporters privilege, contempt citations and FISA. About FISA and retroactive immunity. By all indications, the telecoms have been good citizens, but in my view, ..., substituting mine & Sen. Whitehouse's amendment would remove their immunity from Intel. Committee's FISA bill.
Specter: about CIA tapes, we get resistance from WH. A federal court tried to get them too...no one can say they're political. The balance of power is delicate...the separation of powers will be badly undercut if Congress gives retro immunity to telecoms.
skdadl: 10:08 AM
skdadl tosses up. Total equivocation from Mukasey over waterboarding. Gah.
"Not appropriate" for him to pass judgement on its legality because it isn't currently being used. Absence of actual facts and circumstances ... Lord help us.
(Leahy is swearing in AG Mukasey)
US AG Michael B. Mukasey: (opening statement) Thanks. My tenure at DOJ began 3 months ago, and in short time, (stream cutout) ...there are political initiatives the dept supports, that the Congress opposes, and vice versa. And there are issues where the Congress and Executive branch are in tension...while these tensions will never disappear...doesn't mean we can't work together. There are only 'Acting' Number 2 & 3 (?) at DOJ and we need hearings for these nominees. I hope you will work to make sure they are confirmed. Clock is ticking on national security issues. The (Protect America Act, PAA) will soon sunset...I urge you to pass legislation to ensure that the intel community can surveil targets overseas...protection in light of potential terrorist attacks.
Mukasey: continue to obtain system from 3rd parties to modernize security, and laws. Protecting people from threat of terrorism continues to be our priority. Also protecting civil rights, immigration, etc. Let me return to an issue NB to this cmte. Mr. Chairman, I promised to return my legal analysis of interrogation methods currently authorized by CIA and concluded that they are lawful.
Mukasey: waterboarding: I sought and received information that it is NOT one of the techniques used by the CIA. Is not and may not be currently used. I can tell you what it would take to be added: CIA dir would have to ask for authorization...ask my successor for legal authority...(stream cut out)
Mukasey: I understand fully that you, and other members of cmte may disagree with this position, but as I explained, I don't believe it's advisable to address legal (...stream problem!)
skdadl:
Reasonable people can disagree about these matters ...
NO, YOU DORK. They can't and don't. Read the international treaties you have signed.
kitty again: 10:16 AM
Mukasey: there're some circumstances that would prohibit WB's use, but some which would make it a close consideration. Complex factual situations...precisely b/c situation is so NB, that I, as AG, cannot provide those precise circumstances.
Mukasey: I recognize that those limits may make those issues difficult (in terms of not answering specifics about WB and torture to cmtee). Shared belief of work of DOJ etc. Await questions.
(Mukasey talks too fast!)
Leahy: thank you, and as you suggested, you'll be asked questions. Recent interview in New Yorker w/McConnell...seemed to recognize that whether WB was torture depended on whether it was done to HIM, and said yes. Tom Ridge also said there's no doubt it's torture.
Leahy: do you agree with them that WB'g an AMERICAN citizen anywhere in world is illegal & torture?
Mukasey: w/o going into detail about what they said, I understood they were expressing personal POV. One thing separates them from me, that I'm the AG and they're not. My views taken as statement of law...
Leahy: you disagree with them? Ridge said this while he was dir. of Homeland Sec. You can't be as unequivocal as him?
Mukasey: I don't know that it was described in his statement. I know what my thoughts in office NOW...if I answer w/o concrete circumstances before me, then (1) people hostile to us (stream cut out)...
Leahy: if an American picked up abroad or our military...if not saying we WB, puts them in MORE danger
Mukasey: one point re: our military, they shouldn't be subjected to anything I say or we say here today.
10:21 AM
Leahy: the Inspector General (IG) found that the FBI repeatedly failed to pay phone bills. Payments not on time--resulting in telecom carriers actually disconnecting phone lines, including those used for FISA wiretaps. You said FISA, wiretap NB to national security--if so, how'd we screw up and not pay our bill? You can't have it both ways.
Mukasey: there's *literally* a disconnect there. Failure of oversights, but since been put in place.
Leahy: they were cutting things off b/c no payment, so what were they paying telecoms for surveillance efforts for 5 yrs wiretapping?
Mukasey: don't know
Leahy: can you get that answer for us?
Mukasey: if not classifiied, yes. Whether company participated or not, is itself classified info. I will look at it.
Leahy: I know you were looking at CIA tapes--looking at conduct on tapes or just destruction?
Mukasey: I'm not personally looking at it.
Leahy: I mean the DOJ...are you investigating as dept or through (specific) US Attorney's office?
Mukasey: will go by witness by witness like any other investigation. If it leads to showing motive, then it leads to showing motive, but the person who determines that is the USAtty
Leahy: we'll be talking with him. Read in paper this morning that you were involved in contracts (??) One 52 mill, US Atty Christie, to Ashcroft, no bidding (Zimmer International). (stream cut out)
skdadl:
10:23 AM
Leahy: Speaks of DNI McConnell -- who said waterboarding, if done to him, would indeed be torture. [Missed second Bush official who said the same -- Ridge?]
Do you agree that waterboarding an American citizen anywhere in the world is torture?
M: What they said is personal. I'm the AG. When I pronounce on reach of general principles, that is taken as ...
Leahy interrupts: So you disagree? M: They were speaking personally. Taking refuge in his office. People who are hostile to us ...
Leahy: Puts some of our people in more danger than not.
M: Our military not in danger by anything I've said; they play by the rules; entitled to protections of Geneva Conventions. WOW!
Leahy: FISA: Ha! On to the story of the telecos cutting off the FBI for not paying its bills! Laughing How did we screw up? Ha! Leahy said "screw up."
M: Failure of oversight, blah blah. Sheesh -- you should hear the equivocations.
Leahy: Question of destruction of tapes or question of conduct shown on tapes?
M: I'm not looking into it -- I've appointed prosecutor ...
Leahy: Reposes the question. M: Continues to duck.
Leahy: Contracts ... [?] ... Ashcroft's, eg -- no public notice, no bidding -- It sounds as though something similar was proposed to Mukasey ... This is all news to me, except I knew about Ashcroft. Monitorships. DoJ looking at this. [News to me.]
kitty again: 10:27 AM
Mukasey: I was under consideration (for contract)...DOJ has been looking at monitorships, and prosecutions have increased to ensure that whatever happened, people are held accountable. Looking at these standards: monitors appointed when corporations involved, and sometimes when civil rights in question. As for this case, money came from corporation, not from government. Looking to see if there should be a report to gov..
Leahy: you will let us know? (Update: Jan 31 News)
Mukasey: yes.
10:39
Specter: the President admitted to violating FISA, but justified it, saying he had Article II power. Said he didn't have to go to congress for surveillance program, due to Article II. Question: can president exert Art II power to do torture, in contravention of Geneva Conventions? Reading former Deputy Attorney General Phil Heymann: "for extremely rare case of threat to US lives...we would allow President to..." exempt rules/laws, so long as President documents reasons and submits to approp Congressional committees. Under this standard, is there a legit argument that president has Article II powers to undertake such things?
Mukasey: torture is now unlawful under US law. Can't contemplate any sit'n where this president would exert Art II power...
Specter: he did just *that* in (terrorist surveillance program) TSP, and failure to notify intel cmtees...didn't he?
Mukasey: both those things have been brought under statutes...
Specter: not the point. didn't he act in violation of FISA? No dispute about that, is there?
Mukasey: when that was a surrogate for domestic communications...when foreign comms became...
Specter: not talking about that. Ok, not getting very far there...(stream cut out)
10:33 AM
Specter: thought I had a commitment from you, but the letter Leahy and I wrote said your job was to prevent political influence. Judge Kennedy issued ruling to get info re: destruction of CIA tapes. Will you comply?
Mukasey: don't know details...not an absolute issue.
Specter: you say that, but let me move on about amendment Sen. Whitehouse & I have asked for, regarding gov getting info they need from telecoms, substituting gov as party as a defendant, but no immunity; state secrets, yes. I use the CIA tapes as an e.g., as our oversight has been so ineffective...the courts provide a balance, a separation of powers...the only way to deal w/executive excesses is through courts. Sen. Whitehouse & my amendment would allow gov to continue to get info, but wouldn't close down the courts. What's wrong with that?
Mukasey: would continue to make companies' conduct "front and centre."
Specter: why shouldn't it be? Why should the courts not get a say? When we tried to get records, Cheney went behind my back and kaiboshed...what's wrong with the courts getting involved, when Congress can't get what it needs?
Mukasey: puts telecoms front & centre and puts their methods in front of public...request they had every reason to believe was made in good faith...since 911 (blech)...they're required to push back whenever they can ...can't be constantly in litigation with those who're trying to help us. We can force them to help us, but better to have their willing cooperation. Tech developing faster, faster, and faster. We will sacrifice their coop'n if we...
Specter: will continue this debate on senate floor. Much greater danger to bail out admin for future liability.
10:50 AM
Kennedy (D-Mass): you've taken a number of positive steps. Investigation of CIA tapes. Appointing John Durham, making FBI lead investigative agency.
STREAM cut out AGAIN! Gah! So annoying!
Kennedy: even you claim to be opposed to torture, you refuse to say exactly when/what. The courts have consistently agreed that WB an act of torture. Then in a letter to cmtee last night, you say it *is* but CIA does not use it. You completely ignored fact that it DID use WB'g, but refused to say CIA had to take it off table. Refused to say anything about stress positions etc off table, but these are torture too. I won't even bother to ask you whether you believe it's torture. But would it be torture if it was done to you?
Mukasey: I would *feel* that it was. There are...one of the things Cicero would pass over without mentioning (???)...there are numerous things I would differ with. You say WB is obviously torture. You assume it the same way that bank robbbery is in fact stealing. This is something that people of equal intelligence differ. During debate about Military Commissions Act (MCA), some said WB necessary, some thought obviously barred....expressions on both sides (FUCK!)
skdadl: 10:39 AM
THEY CONFIRMED THIS GUY?!?
Chuck Schumer, you have a LOT to answer for.
kitty again: 10:55 AM
Kennedy: under what 'facts and circumstances' would it be lawful to WB a person?
Mukasey: I would be telling our enemies what they could expect...I would also be telling people in the field, what they would have to refrain from...
Kennedy: is there anything we can't do?
Mukasey: we can't maim, we can't...there's a whole list of specifically barred techniques.
Kennedy: WB not on that list?
Mukasey: it's not.
Kennedy: the INS backlog (immigration) has increased over the last months....thousands left in limbo. NB to process these in time for November elections. Fees have increased. Administration has told us that the line is growing longer, longer and longer. Thousands of qualified people won't be allowed to vote. What will DOJ do?
Mukasey: process of application in dept Homeland Sec. But DOJ will do everything it can to make sure that anyone who *can* will be allowed to vote. Will put out monitors, etc.
Kennedy: what is DOJ doing to give rest of dept to move ahead on this? It's all good to talk about suppression etc, but thousands will be denied...
Mukasey: don't know who the contacts are. Will find out.
Leahy: Sen Grassley will be next, then Biden...taking list of GOP side...Sen Sessions.
skdadl: 10:44 AM
They're all there today, yes? That always means something. When the R's show up, that means something.
kitty again: 10:59
Grassley (R-Iowa): Gen Mukasey, you assured me you'd assist me w/my oversight efforts. I'll hold you to your word. The DOJ responded on Friday to my requests, so I've only had 4 days to respond to 250 pages of answers. (stream cut out)
Grassley: when can I expect this request from FBI that I've been waiting for since March 2007? (didn't hear about what...stream cut out)
Mukasey: will talk to director about what they are, and why the delay.
skdadl: 10:48 AM
Grassley is pretty boring, although he's a lot tougher than I expected. He's working hard on the issue of whistleblowers.
ETA: Oh, now Mukasey is using "separation of powers" as an excuse. If only they actually believed in genuine separation. In fact Mukasey is an apologist for the "unitary executive."
Grassley is doing very well, actually, in defending Congress's right to oversight. Well done.
kitty again: 11:02 AM
Grassley: whistleblowers--individuals w/security clearance who witness wrongdoing, face Catch-22. As a solution, Sen unanimously passed S 274, Fed Employee Protection Act of 2007, strike balance: ind'ls who know wrongdoing to report to Congress, but only to specific persons cleared to hear class'd info. Ensures Nat'l security info remains secret, but while Congress still conducts oversight. You, along w/McConnell, Gates and Chertoff signed a letter OBJECTING to 274! In letter, you say mechanisms to protect whistleblowers somehow compromises security...find it difficult to reconcile this letter w/your stmts at confirmation hearing.
(whoah! this is news? I didn't know this)
Grassley: why doesn't Congress have a right to know this info? why isn't it enough for whistleblowers just to report to cleared-individuals?
Mukasey: cuts off supervisory chain and even the president from chain (oh, get out of town!!!!!) To simply go to Congress, who may have clearance, that cuts off proper supervision. Recognize that problems might exist. DNI, FBI, Sec HS believe that's not the way to do it.
Grassley: funny that a law that passed unanimously is "not the way to do it." We should wait another 5 yrs? (he's really mad!!)
11:06 AM
Mukasey: simply argued that was not the way to do it
Grassley: you have a prob reconciling what you say about chain of command that wants to stop wrongdoing in the firstplace. In between the president and the janitor, you got plenty of people who don't want congress to know stuff in the first place!
11:09
Biden (D-Delaware): you have a lot of fans who are friends of mine. General, I'm a little confused...want to understand methodology you use re: WB. When you boil it all down (unfortunate choice of words!!!), it appears whether or not WB is torture is a relevant question. It isn't if you hung somebody by their thumbs? You talk in relative terms. If WB, if by person in any gov agency, if engaged b/c they believed prisoner knew about a weapon about to be detonated--that might be ok? Is that what you're saying?
Mukasey: not simply a relative issue. There *IS* a statute where it is a relative issue. Detainee Treatment Act is a "shocks the conscience" standard...weighed against cost of doing it...
Biden: what do you mean? Behaviour or ?
Mukasey: the cruelness of it... (?!)
Biden: what?
Mukasey: getting info used to save lives, wouldn't have to get to whether torture or not...
Biden: the "shocking of the conscience" is the relevance. If WB was to save humanity, that's one thing...I've never heard referenced that way. I didn't think "shocking the conscience" related to the *end* being sought. Thought it was about the behaviour, the cruelty, of what was being *done* to the ind'l. Would love to know anyone else who's used this phrase in the context you just reference. In fact, it shocks *MY* conscience... I went to Law school, took Catholic school, took 2 periods Latin, took Cicero too...just never heard issue, "shocks conscience" in terms of rel benefit of technique.
Biden: moving on...we're all very proud of what we try to accomplish. One of the things I take great pride in is....(stream prob)
skdadl: 11:01 AM
Biden is being brilliant. Gee: if only he would show up more.
He started off sounding as though he wasn't going to put Mukasey through the wringer on waterboarding, but then he really did. That discussion of what "shocks the conscience" was terrific and tough ... Biden was essentially arguing that it is immoral to abandon means for ends.
And there he ends -- "You guys broke it." Priceless.
kitty again: 11:14 AM
Biden: told "violent crime is down" and the admin's budget is sufficient to deal with the problem. Crime down 2005, 6, 7...but still *high*. Down from high of 1992 (didn't catch numbers), but still high. Hope you'll reconsider utility of Biden Crime proposal, b/c I'm not prepared to accept 1 400 000 violent crimes per 2006. Lies, damn lies and statistics---unacceptable to have this many violent crimes. Based on all data, more cops we have in street, more violent crime drops! ...blah blah blah...
Mukasey: I agree that the strategy is to not tolerate any violent crime. Strat to target where the need is, and get it out there.
Biden: with all due respect, if it's not broke, don't fix it. It wasn't broke. You guys broke it.
11:19
Sessions (R-Alabama): WB "has not been on reckless, not on a wide scale, as I understand it"
Mukasey: that's how I understand it too. (stream cut out)
11:20 AM
Sessions: no USAtty office has tried to prosecute (on a specific area of the US/Mexico border). No results. Arrests decreased 50% in Del Rio. Important to prosecute routine crimes--broken windows idea (Giuliani's NYC model).
(this Lou Dobbs stuff is snoozers, eh?)
11:23 AM
Mukasey: committed to Operation Streamline....different strats at difft parts of border. Releasing entrants at distant parts of border makes it hard for them to hook-up again w/people who brought them to border in first place.
Sessions: I believe this works. I believe you've proven that it works. You may need some more money, but we can afford this. Will you continue to monitor it and support expansion?
Mukasey: I will.
skdadl: 11:08 AM
Sessions: ok.
In a way, I think that Sessions is cute. He's 'way far out right-wing, but I keep remembering that funny exchange he had with Leahy about girlfriends, and how "no one would have me."
He's doing patriotic defence of the troops.
Now he's lobbing softballs at Mukasey over zero-tolerance for illegal entry over the Mexican border ... DoJ doing so much better ...
You don't want to hear this word for word. It's just Sessions setting Mukasey up to look good on lawnorder, especially when it comes to those wetbacks coming over the southwest border.
Oh, boy: you committed to pursuing even more of these entry prosecutions? Guess what the answer is?
kitty again: 11:15 AM
(Leahy entering letters from JAG officers--didn't catch all names--in which they say WB'g is torture)
(stream cut out)
11:26 AM
Kohl (D-Wisconsin): funding for the Burn program cut. (stream cut out)
Kohl: the programs that have been routinely cut by this admin were for kids (delinquency, Title V/juv crime prevention, and junior accountability block program)...these programs need to be re-authorized and well funded. This admin has not supported them. Will funding be a priority of YOURS?
Mukasey: certainly a priority. The president, as part of his budget, has a targetted program for Milwaukee...also have a safe-streets program, anti-gang initiative...looking to use funds intelligently...
Kohl: appreciated. Will follow up on these. On GTMO, last year we talked about long list of security experts who've argued it's in our interests to CLOSE it. Mullen has agreed, publicly. You would not add your name to that list. But said you'd recommend responsible course--you'd get the best advice you could get. Has this advice been given? Prepared to add your name?
Mukasey: President has said he wants to close GTMO, as long as done in responsible way. Case before SC, Boumediene v Bush, and there are a few matters before this court...whether there's a habeas right or whether there's some alternative to HC that would be sufficient...there's another case in DC circuit, involving adequacy of CSRTs and what we can do to improve those. We're conscious of these things...(stream cut out)
11:32 AM
Mukasey: courts should always look at protective order...(WTF is this about?)
Kohl: many court secrecy awards occurred...(I have no f'g Idea what Kohl is talking about...guess he's done w/GTMO?)
11:34 AM
Brownback (R-Kansas): about GTMO, I want to invite you to Leavenworth, to disciplinary barracks, which is the place most often cited to replace GTMO. Don't think we're set for these detainees to move yet. Excellent facility, but not ready for kind of detainees at GTMO. Pragmatically, the current projection to move them to Leavenworth disciplinary---hope you can come and visit, look at these barracks. Command & Gen staff of military office is 3 miles from this disciplinary barracks. Is this wise? Not sure this is a good idea to have GTMO detainees at Leavenworth. Don't think we're ready to handle this.
Mukasey: agree, there are practical limitations. Don't know of any official who believe his state is ready to accept ex-prisoners from GTMO. Effect, legally, is that they'll bring flurry of 1000s of lawsuits, so to just wind up releasing the detainees. Bringing them here would be a whole lot easier.
Brownback: hope you'd come look at facility first.
Mukasey: will do.
Brownback: come to my attn that gov is interested in intervening in Knox v. PLO; some are seeking to vacate judgement of 4 mill dollars? Would hope you'd let citizens (stream cut out)
11:38 AM
(missed about 30 seconds here due to stream)
Brownback: there's a DC gun ban case before SCOTUS. Do you agree w/administration that 2nd amendment protects right to bear arms?
Mukasey: I do. This is a right that is subject to intermediate scrutiny. Regulate guns in hands of felons, but have to make sure they're not swept up in other laws.
Brownback: your view on FISA legislation. Some say we should just substitute fed gove for telecom companies. Your thoughts on this particular issue? Oh, before I go, I wanna thank you for stepping into this job at a tough time...uncomfortable topics...etc. I appreciate you at the end of an admin...God bless you and God speed.
Mukasey: on specific issue of substitution...could open up conduct into methods of scrutiny (Huh?). Can't operate in future w/o a court order means they can't operate in good faith.
skdadl: 11:32 AM
This is a question imagined by perris at emptywheel's, an elaboration of Kennedy's question to Mukasey: “if we waterboarded you until you said waterboarding was torture, how long do you think it would take you to say it and would that testimony from you be of any value at all?”
Exactly.
kitty again: 11:43 AM
(missed her first question--Feinstein)
Feinstein (D-California): it is widely alleged that in the past, at least 3 people were in fact waterboarded.
stream cut out.
Feinstein: both MCA and DTA, combined law for military that WB is prohibited. The loophole is CIA. I proposed amendment to put CIA under army field manual with respect to interrogation. Accepted by House, Senate...if comes to floor of Sen and signed by Pres, once and for all, WBg will be prohibited by gov. I believe how interrogation is done, the timing of it is all important...would like to ask you to describe scenario in top para on page 2, how it would look, legally, if interrogation carried out on a foreign territory. Not a trick question...
Mukasey: not saying that, but...
Feinstein: I assume most of this would take place on foreign territory. Are you saying interrogator would cable CIA director? How would it work, legally?
Mukasey: would require CIA director to become aware--however he becomes aware of a technique, describes how it's done, including safeguards, limits, etc. To me, I consult w/whoever I have to consult w/and then it goes to President.
Feinstein: I'm trying to define process. Don't know if it's legal or not...
Mukasey: does not account for a problem w/communication...
Feinstein: is it legal for an interrogation which involves "EITs" (extraordinary interrogation techniques) to be carried out by non-governmental employee?
Mukasey: (long pause!) As you know, there's what's called an EIT which authorizes CIA to do those programs. Don't know whether it allows subcontractors of CIA--short answer is I don't know...we prosecuted a contractor against offense against prisoner. He got 100 months.
Feinstein: would like to know whether it's legal to contract-out EIT to contractor.
Feinstein: Moving on. You received a letter from Scott Bloch, special counsel, investigations of USAtty firings and alleged politicization at DOJ--it's being impeded by DOJ, letter dated Jan 25th. (stream cut out)
11:50
Feinstein: letter from Bradbury reiterates request that we step down. Assume conflict w/special counsel on this.
Mukasey: Bloch is in an office not w/in DOJ, I believe.
Feinstein: letter outlines whole litany of refusals to cooperate.
Mukasey: will see to it that Bloch gets a response.
Leahy: short break (Sen. Kyl laughs "I'll be real brief!") ...the witness needs a short break.
12:02 PM
Kyl (R-Arizona): (missed first part of his question, stream probs) We have oversight of your dept. Also have other responsibilities, including filling in slots that are now vacant. Can you send us a list of vacant spots, so we can act quickly?
Kyl: re Operation Streamline (what Sessions was talkin aboot); there's a great deterrent effect, knowing if apprehended, going to jail for 60 days. For those coming to work, can't afford 60 days in jail. Apprehensions down significantly in Yuma sector, also prolly due to double fencing, and other factors. You noted some relationship to resources available. For last couple of years, since strong support for law-enforcement etc, Congress willing to spend anything necessary to get this under control. Spent 1.3 bill dollars. We need to know what would be necessary, in terms of add'l detention spaces, additional prosecutors, whatever, to extend this program where it could be efficacious?
Mukasey: will try to send info. Did see the dearth of detention space that causes them to decide which criminals they'll confine and which they'll allow to "roam free." Prisons taking a big hit. Hard for marshalls.
Kyl: detention space a homeland sec issue. Chertoff asked for 43 or 46000 detention spaces. This has been provided now. Aware there's a limit on number of prosecutors. I was accosted this winter (in Arizona) complaining about minimal levels of prosecution. (stream cut out)
12:07 pm
Mukasey: question of judges, how fast cases can move through courts
Kyl: enhanced our ability to apprehend but...(stream cut out)
...
Kyl: (new subject) crime victims are the ones who suffer if this money is taken away.
Mukasey: not singling out victim fund for attacks on management, but victim funds had to pay certain proportion of that for administration. Up until now, there's been enough, but regrettably, this hasn't been the case.
Kyl: we have ability to affect funding. Rather than allowing victims to suffer, would prefer to approp money.
Kyl: new sub. Views on the media shield proposal--could you share those views?
Leahy: could you submit that for me, please?
Mukasey: note only that I'm one of many signatories on a letter from CIA, DOD, etc all of whom have indicated views.
Leahy: could also reiterate Kyl's request of list of vacancies, including list of positions for which there's no nomination at all yet. FBI indicated list of 20 USAtty for which there's no nomination.
Feingold!
12:11 PM
Feingold (D-Wisconsin): thanks for your call on Friday to end disparate treatment of lgbt mems of DOJ. Heartening news. You followed through on your commitment to me at your confirmation hearing.
Feingold: you said you'd not be a yes man. Reading your testimony so far, re McNulty memo, you've embraced president's or DOJ's previous positions w/o reservation. (stream cut out!)
12:09 PM
Feingold: would you be willing to prosecute such crimes (torture)?
Mukasey: I don't see any inconsistency, b/c um...STREAM cut out! (...)
Mukasey: a subcontractor for CIA, abusing a prisoner, no hesitation there (to prosecute). Simply follow the law. My positions may differ from admin, but I do my job, go home, go to sleep.
Feingold: how do you prosecute in this scenario without "tipping off enemy"
Mukasey: if someone is guilty of violating US law, they get prosecuted. Difft from talking about circs in which specific interrogation technique might violate law.
Feingold: as member of intelligence cmtee, I disagree with you--letter I sent to you on Dec 10, when will you come to ccongress in class'd setting, describe interrogation tech by interrogation tech...
Mukasey: letters classified. Remain classified. Agreed to review letters, which do, in fact review techniques. You've asked me to do something difft from what's in letters. Will not do that.
Feingold: you won't come to congress and explain?
Mukasey: details embodied in class'd letters. They explain it far beyond my ability in an 'off the cuff'--no, not off the cuff---with the authorities at hand, who have authority.
Feingold: this is unacceptable. To me, this means explaining your view. We're talking about a class'd setting. NB to have more than a one-way conversation about this. Urge you to reconsider.
Feingold: in your written testimony, you said granting immunity to telecoms essential. Assuming you don't want to encourage telecoms to break the law?
Mukasey: correct
Feingold: let's take situation where telecoms clearly violate law.
Mukasey: don't want to encourage anyone to violate law. Covers helping...
Feingold: FISA been on the books for 30 yrs, not modified or repealed--would telecoms be required to comply?
Mukasey: yes, but now in a regime in which...(stream problems)
12:20 PM
Orrin Hatch up (blech)
Hatch (R-Utah): not only are you sincere, but you're doing your best. Letter you said about interrogation techniques: you've made an effort to be as forthcoming as you can. You wrote that this area involves carefully worded...this is not an area in which hypothetical scenarios are advisable. You're the nation's top lawyer. Your prepared statement addressed FISA reform, and probably most NB piece of legislation we will consider in the 110th congress. Last night we passed only a brief extension. Requires us to intercept communications. Your letter said this takes a sunset-provision--a shorterm approach, in your view. I don't think this is the way to proceed, so that's why I strongly oppose sunset provisions. We didn't have them in 1978. Nearly every one of these amendments have a sunset. Regarding proposal of colleagues, substituting gov in place of telecoms--would this allow 3rd party discovery, class doc requests?
Mukasey: yes & yes. That's what I meant by still litigating, plus costs imposed in terms of meeting these requests.
Hatch: wouldn't this reveal whether the gov had a relationship w/specific telecom?
Mukasey: yes
Hatch: wouldn't it involve revealing info to terrorists and others? I have a letter from McConnell to Kit Bond. E.g. terrorists attempts to obtain guns, and terrorist money transfers, and efforts of an ind'l to become suicide operative. Eg.s of "success" stories of TSP. Are you aware of any instances in which intel analyst used PAA to intercept an American communication?
Mukasey: I am not
Hatch: from intel perspective, reverse targetting makes no sense. But could apply for a warrant. (stream cut out)
skdadl: 12:14 PM
The war. 9/11. Terrism. Mukasey and Hatch are both true believers, and they're having a party on this topic. Lord help us.
Thank God -- here comes Durbin.
Aha. Durbin is bringing up the pictures on Mukasey's wall -- Orwell and Justice Jackson (Durbin didn't mention Jackson, one of the Nuremberg justices -- I just knew that).
Go, Durbin.
kitty again: 12:26 PM
Hatch: essential to use telecoms. Can you elaborate on importance of coop'n w/telecom providers? Have you seen a change in voluntariness of cooperation w/private sector companies? (long whine about poor, wee telecoms...)
Mukasey: have we gotten pushback? Yes. This is a war unlike any other we've ever been involved in. Not involve particular countries, places. These folks live in and among civilian pop'ns. Use all techniques of 20th century (20th?)
Hatch: thank you.
12:27 PM
Durbin (D-Illinois): I asked you who your heroes were. You said you kept pic of Orwell b/c of his essay, Politics and the English language. I respect you for that. In that essay, Orwell was critical of misleading political speech ("concrete melts into the abstract") Mr. AG, I'd say, wrt waterboarding, that the concrete melts into the abstract.
Durbin: still troubled as I listen to your answers. First, you say in your letter to cmtee that reasonable people can disagree wrt WB. Can you cite any court cases, scholars, people of good faith who disagree that WB is not torture? Secondly, when you replied to Biden, you said WB in certain circs would no shock conscience, e.g discovery of nukes. Why has gov discontinued this form of interrogation if there *are* circumstances that justify it? Third, your unwillingness to take an unequivocal position against WB--our troops protected against WB. There are special forces, personnel...(stream cut out)
12:31 PM
Mukasey: some in this chamber have disputed that it wouldn't be legal to engage in certain techniques...and then pull back, if necessary to save American lives
Durbin: the Senate? We've voted on a bipartisan, overwhelming vote to prohibit certain practices, McCain amendment
Mukasey: and the chamber on another occasion declined, viz WBg, and others who said the language was so general that it would open things up to other things that would be so objectionable and cruel...
Durbin: if DTA is so clear, and went so far as to grant amnesty to employees who engaged in it, you still think the jury's out on whether WBg is torture?
Mukasey: question is not whether Sen is "out" on this or that technique, the question is whether Sen has spoken clearly enough in legislation it has passed, and that Pres has signed, which is all anybody has to work with
Durbin: where is lack of clarity in McCain legislation?
Mukasey: the words, people on both sides of debate, to point to "this" or "that" seems to me is to pick nits at this point
Durbin: as chairman has noted, Sens McCain, Warner and Graham (sponsors of legislation) that under MCA, WBg is a "warcrime." At this moment, you have employees of yours in Iraq, counselling employees not to use torture. Your testimony so far is that "it depends on circumstances"--we're trying to teach to the world, a standard we want our own people to live by?
Mukasey: the reasons I outlined are already matters of record. As to your second question, you suggest ....
Durbin: Sen Biden's question? About "shocking conscience"?
Mukasey: what I described was a situation in which it *would* shock conscience. It was put in place by the peson who wrote the decision. Not by me
Durbin: I assume you were arguing that the use of such techs to discover nukes would not shock conscience?
Mukasey: No...that's not what I said
Durbin: what about circumstances where tech would save lives?
Mukasey: not part of program. Don't know how that would work
Durbin: under military standards, they're not interested in danger. They say unequivocally. You say, for non-military it's still unresolved?
Mukasey: still unresolved. I've not been presented with a concrete situation. (stream cut out)
skdadl: 12:21 PM
Kitty: I can't stand Mukasey.
"Pick nits"??? Who is picking nits? This man is so dreadful. Others "pick nits": he exercises "due caution."
I can't bear this. We're listening to the Federalist Society. "I have not been presented with a concrete situation." A human one, neither, it appears.
Recess till 2.
***Note: "WB" stands for waterboarding. How said is it that we use this term often enough to warrant abbreviation?! Also: this is NOT a transcript. Time-stamps are approximate. Some notes are skdadl's, and some are mine :)
UPDATE [Jan 31, 2008, 3:27 PM]: I have cleaned up our notes from yesterday and annotated with links, as appropriate. Hope you find these useful!
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
10:10
Sen. Pat Leahy (D-Vermont, Chairman) is making his opening statement--Sens. Kennedy & Specter have co-sponsored legislation to reign in this president regarding torture, rendition etc.
"No one is more eager than I to see our new AG" repair damage inflicted "on our constitution, civil liberties"
(sorry...missed first few mins)
10:11 AM
Sen. Arlen Specter (R-Pennsylvania, Ranking Member; opening statement): Sen Leahy talks about the expansion of executive power, and I think that's been the case. No one is above law, but when the president institutes a warrantless surveillance program (hiding behind state-secrets)...changes constitutional authority of president? The courts have not yet ruled on that subjects.
Specter: Waterboarding--your views (Mukasey) are important, but the Senate considered this issue Sep 26, and voted 53-46 to ban waterboarding. I was among them--I figure waterboarding oughta be banned, and that it's torture. But that's not the issue... (stream cut out)
Specter: could draw statute much more narrowly. The issue is tantamount to learned opinion of Israaeli Supreme Crt, where, in extenuating circumstances, could allow torture. State should not be helpless...could be authorized to use these interrogation methods...obligation of state to defend itself. Same view expressed by Schumer, 2004 (NOTE, Schumer said, "We are in a brave new world"), and by academics, and by former Deputy Attorney General Phil Heymann
Specter: time to get beyond just your view, Mr. AG, as Senate should consider this subject. Also, whether CIA should be limited by Army Field Manual. It's a violation of international law, but could be another area where President has Article II power? Constitutional law is balancing phase...eg. first amendment, and 4th...Congress is well advised that the President oughta do what's in his power.
Specter: Other issues I want to cover...reporters privilege, contempt citations and FISA. About FISA and retroactive immunity. By all indications, the telecoms have been good citizens, but in my view, ..., substituting mine & Sen. Whitehouse's amendment would remove their immunity from Intel. Committee's FISA bill.
Specter: about CIA tapes, we get resistance from WH. A federal court tried to get them too...no one can say they're political. The balance of power is delicate...the separation of powers will be badly undercut if Congress gives retro immunity to telecoms.
skdadl: 10:08 AM
skdadl tosses up. Total equivocation from Mukasey over waterboarding. Gah.
"Not appropriate" for him to pass judgement on its legality because it isn't currently being used. Absence of actual facts and circumstances ... Lord help us.
(Leahy is swearing in AG Mukasey)
US AG Michael B. Mukasey: (opening statement) Thanks. My tenure at DOJ began 3 months ago, and in short time, (stream cutout) ...there are political initiatives the dept supports, that the Congress opposes, and vice versa. And there are issues where the Congress and Executive branch are in tension...while these tensions will never disappear...doesn't mean we can't work together. There are only 'Acting' Number 2 & 3 (?) at DOJ and we need hearings for these nominees. I hope you will work to make sure they are confirmed. Clock is ticking on national security issues. The (Protect America Act, PAA) will soon sunset...I urge you to pass legislation to ensure that the intel community can surveil targets overseas...protection in light of potential terrorist attacks.
Mukasey: continue to obtain system from 3rd parties to modernize security, and laws. Protecting people from threat of terrorism continues to be our priority. Also protecting civil rights, immigration, etc. Let me return to an issue NB to this cmte. Mr. Chairman, I promised to return my legal analysis of interrogation methods currently authorized by CIA and concluded that they are lawful.
Mukasey: waterboarding: I sought and received information that it is NOT one of the techniques used by the CIA. Is not and may not be currently used. I can tell you what it would take to be added: CIA dir would have to ask for authorization...ask my successor for legal authority...(stream cut out)
Mukasey: I understand fully that you, and other members of cmte may disagree with this position, but as I explained, I don't believe it's advisable to address legal (...stream problem!)
skdadl:
Reasonable people can disagree about these matters ...
NO, YOU DORK. They can't and don't. Read the international treaties you have signed.
kitty again: 10:16 AM
Mukasey: there're some circumstances that would prohibit WB's use, but some which would make it a close consideration. Complex factual situations...precisely b/c situation is so NB, that I, as AG, cannot provide those precise circumstances.
Mukasey: I recognize that those limits may make those issues difficult (in terms of not answering specifics about WB and torture to cmtee). Shared belief of work of DOJ etc. Await questions.
(Mukasey talks too fast!)
Leahy: thank you, and as you suggested, you'll be asked questions. Recent interview in New Yorker w/McConnell...seemed to recognize that whether WB was torture depended on whether it was done to HIM, and said yes. Tom Ridge also said there's no doubt it's torture.
Leahy: do you agree with them that WB'g an AMERICAN citizen anywhere in world is illegal & torture?
Mukasey: w/o going into detail about what they said, I understood they were expressing personal POV. One thing separates them from me, that I'm the AG and they're not. My views taken as statement of law...
Leahy: you disagree with them? Ridge said this while he was dir. of Homeland Sec. You can't be as unequivocal as him?
Mukasey: I don't know that it was described in his statement. I know what my thoughts in office NOW...if I answer w/o concrete circumstances before me, then (1) people hostile to us (stream cut out)...
Leahy: if an American picked up abroad or our military...if not saying we WB, puts them in MORE danger
Mukasey: one point re: our military, they shouldn't be subjected to anything I say or we say here today.
10:21 AM
Leahy: the Inspector General (IG) found that the FBI repeatedly failed to pay phone bills. Payments not on time--resulting in telecom carriers actually disconnecting phone lines, including those used for FISA wiretaps. You said FISA, wiretap NB to national security--if so, how'd we screw up and not pay our bill? You can't have it both ways.
Mukasey: there's *literally* a disconnect there. Failure of oversights, but since been put in place.
Leahy: they were cutting things off b/c no payment, so what were they paying telecoms for surveillance efforts for 5 yrs wiretapping?
Mukasey: don't know
Leahy: can you get that answer for us?
Mukasey: if not classifiied, yes. Whether company participated or not, is itself classified info. I will look at it.
Leahy: I know you were looking at CIA tapes--looking at conduct on tapes or just destruction?
Mukasey: I'm not personally looking at it.
Leahy: I mean the DOJ...are you investigating as dept or through (specific) US Attorney's office?
Mukasey: will go by witness by witness like any other investigation. If it leads to showing motive, then it leads to showing motive, but the person who determines that is the USAtty
Leahy: we'll be talking with him. Read in paper this morning that you were involved in contracts (??) One 52 mill, US Atty Christie, to Ashcroft, no bidding (Zimmer International). (stream cut out)
skdadl:
10:23 AM
Leahy: Speaks of DNI McConnell -- who said waterboarding, if done to him, would indeed be torture. [Missed second Bush official who said the same -- Ridge?]
Do you agree that waterboarding an American citizen anywhere in the world is torture?
M: What they said is personal. I'm the AG. When I pronounce on reach of general principles, that is taken as ...
Leahy interrupts: So you disagree? M: They were speaking personally. Taking refuge in his office. People who are hostile to us ...
Leahy: Puts some of our people in more danger than not.
M: Our military not in danger by anything I've said; they play by the rules; entitled to protections of Geneva Conventions. WOW!
Leahy: FISA: Ha! On to the story of the telecos cutting off the FBI for not paying its bills! Laughing How did we screw up? Ha! Leahy said "screw up."
M: Failure of oversight, blah blah. Sheesh -- you should hear the equivocations.
Leahy: Question of destruction of tapes or question of conduct shown on tapes?
M: I'm not looking into it -- I've appointed prosecutor ...
Leahy: Reposes the question. M: Continues to duck.
Leahy: Contracts ... [?] ... Ashcroft's, eg -- no public notice, no bidding -- It sounds as though something similar was proposed to Mukasey ... This is all news to me, except I knew about Ashcroft. Monitorships. DoJ looking at this. [News to me.]
kitty again: 10:27 AM
Mukasey: I was under consideration (for contract)...DOJ has been looking at monitorships, and prosecutions have increased to ensure that whatever happened, people are held accountable. Looking at these standards: monitors appointed when corporations involved, and sometimes when civil rights in question. As for this case, money came from corporation, not from government. Looking to see if there should be a report to gov..
Leahy: you will let us know? (Update: Jan 31 News)
Mukasey: yes.
10:39
Specter: the President admitted to violating FISA, but justified it, saying he had Article II power. Said he didn't have to go to congress for surveillance program, due to Article II. Question: can president exert Art II power to do torture, in contravention of Geneva Conventions? Reading former Deputy Attorney General Phil Heymann: "for extremely rare case of threat to US lives...we would allow President to..." exempt rules/laws, so long as President documents reasons and submits to approp Congressional committees. Under this standard, is there a legit argument that president has Article II powers to undertake such things?
Mukasey: torture is now unlawful under US law. Can't contemplate any sit'n where this president would exert Art II power...
Specter: he did just *that* in (terrorist surveillance program) TSP, and failure to notify intel cmtees...didn't he?
Mukasey: both those things have been brought under statutes...
Specter: not the point. didn't he act in violation of FISA? No dispute about that, is there?
Mukasey: when that was a surrogate for domestic communications...when foreign comms became...
Specter: not talking about that. Ok, not getting very far there...(stream cut out)
10:33 AM
Specter: thought I had a commitment from you, but the letter Leahy and I wrote said your job was to prevent political influence. Judge Kennedy issued ruling to get info re: destruction of CIA tapes. Will you comply?
Mukasey: don't know details...not an absolute issue.
Specter: you say that, but let me move on about amendment Sen. Whitehouse & I have asked for, regarding gov getting info they need from telecoms, substituting gov as party as a defendant, but no immunity; state secrets, yes. I use the CIA tapes as an e.g., as our oversight has been so ineffective...the courts provide a balance, a separation of powers...the only way to deal w/executive excesses is through courts. Sen. Whitehouse & my amendment would allow gov to continue to get info, but wouldn't close down the courts. What's wrong with that?
Mukasey: would continue to make companies' conduct "front and centre."
Specter: why shouldn't it be? Why should the courts not get a say? When we tried to get records, Cheney went behind my back and kaiboshed...what's wrong with the courts getting involved, when Congress can't get what it needs?
Mukasey: puts telecoms front & centre and puts their methods in front of public...request they had every reason to believe was made in good faith...since 911 (blech)...they're required to push back whenever they can ...can't be constantly in litigation with those who're trying to help us. We can force them to help us, but better to have their willing cooperation. Tech developing faster, faster, and faster. We will sacrifice their coop'n if we...
Specter: will continue this debate on senate floor. Much greater danger to bail out admin for future liability.
10:50 AM
Kennedy (D-Mass): you've taken a number of positive steps. Investigation of CIA tapes. Appointing John Durham, making FBI lead investigative agency.
STREAM cut out AGAIN! Gah! So annoying!
Kennedy: even you claim to be opposed to torture, you refuse to say exactly when/what. The courts have consistently agreed that WB an act of torture. Then in a letter to cmtee last night, you say it *is* but CIA does not use it. You completely ignored fact that it DID use WB'g, but refused to say CIA had to take it off table. Refused to say anything about stress positions etc off table, but these are torture too. I won't even bother to ask you whether you believe it's torture. But would it be torture if it was done to you?
Mukasey: I would *feel* that it was. There are...one of the things Cicero would pass over without mentioning (???)...there are numerous things I would differ with. You say WB is obviously torture. You assume it the same way that bank robbbery is in fact stealing. This is something that people of equal intelligence differ. During debate about Military Commissions Act (MCA), some said WB necessary, some thought obviously barred....expressions on both sides (FUCK!)
skdadl: 10:39 AM
THEY CONFIRMED THIS GUY?!?
Chuck Schumer, you have a LOT to answer for.
kitty again: 10:55 AM
Kennedy: under what 'facts and circumstances' would it be lawful to WB a person?
Mukasey: I would be telling our enemies what they could expect...I would also be telling people in the field, what they would have to refrain from...
Kennedy: is there anything we can't do?
Mukasey: we can't maim, we can't...there's a whole list of specifically barred techniques.
Kennedy: WB not on that list?
Mukasey: it's not.
Kennedy: the INS backlog (immigration) has increased over the last months....thousands left in limbo. NB to process these in time for November elections. Fees have increased. Administration has told us that the line is growing longer, longer and longer. Thousands of qualified people won't be allowed to vote. What will DOJ do?
Mukasey: process of application in dept Homeland Sec. But DOJ will do everything it can to make sure that anyone who *can* will be allowed to vote. Will put out monitors, etc.
Kennedy: what is DOJ doing to give rest of dept to move ahead on this? It's all good to talk about suppression etc, but thousands will be denied...
Mukasey: don't know who the contacts are. Will find out.
Leahy: Sen Grassley will be next, then Biden...taking list of GOP side...Sen Sessions.
skdadl: 10:44 AM
They're all there today, yes? That always means something. When the R's show up, that means something.
kitty again: 10:59
Grassley (R-Iowa): Gen Mukasey, you assured me you'd assist me w/my oversight efforts. I'll hold you to your word. The DOJ responded on Friday to my requests, so I've only had 4 days to respond to 250 pages of answers. (stream cut out)
Grassley: when can I expect this request from FBI that I've been waiting for since March 2007? (didn't hear about what...stream cut out)
Mukasey: will talk to director about what they are, and why the delay.
skdadl: 10:48 AM
Grassley is pretty boring, although he's a lot tougher than I expected. He's working hard on the issue of whistleblowers.
ETA: Oh, now Mukasey is using "separation of powers" as an excuse. If only they actually believed in genuine separation. In fact Mukasey is an apologist for the "unitary executive."
Grassley is doing very well, actually, in defending Congress's right to oversight. Well done.
kitty again: 11:02 AM
Grassley: whistleblowers--individuals w/security clearance who witness wrongdoing, face Catch-22. As a solution, Sen unanimously passed S 274, Fed Employee Protection Act of 2007, strike balance: ind'ls who know wrongdoing to report to Congress, but only to specific persons cleared to hear class'd info. Ensures Nat'l security info remains secret, but while Congress still conducts oversight. You, along w/McConnell, Gates and Chertoff signed a letter OBJECTING to 274! In letter, you say mechanisms to protect whistleblowers somehow compromises security...find it difficult to reconcile this letter w/your stmts at confirmation hearing.
(whoah! this is news? I didn't know this)
Grassley: why doesn't Congress have a right to know this info? why isn't it enough for whistleblowers just to report to cleared-individuals?
Mukasey: cuts off supervisory chain and even the president from chain (oh, get out of town!!!!!) To simply go to Congress, who may have clearance, that cuts off proper supervision. Recognize that problems might exist. DNI, FBI, Sec HS believe that's not the way to do it.
Grassley: funny that a law that passed unanimously is "not the way to do it." We should wait another 5 yrs? (he's really mad!!)
11:06 AM
Mukasey: simply argued that was not the way to do it
Grassley: you have a prob reconciling what you say about chain of command that wants to stop wrongdoing in the firstplace. In between the president and the janitor, you got plenty of people who don't want congress to know stuff in the first place!
11:09
Biden (D-Delaware): you have a lot of fans who are friends of mine. General, I'm a little confused...want to understand methodology you use re: WB. When you boil it all down (unfortunate choice of words!!!), it appears whether or not WB is torture is a relevant question. It isn't if you hung somebody by their thumbs? You talk in relative terms. If WB, if by person in any gov agency, if engaged b/c they believed prisoner knew about a weapon about to be detonated--that might be ok? Is that what you're saying?
Mukasey: not simply a relative issue. There *IS* a statute where it is a relative issue. Detainee Treatment Act is a "shocks the conscience" standard...weighed against cost of doing it...
Biden: what do you mean? Behaviour or ?
Mukasey: the cruelness of it... (?!)
Biden: what?
Mukasey: getting info used to save lives, wouldn't have to get to whether torture or not...
Biden: the "shocking of the conscience" is the relevance. If WB was to save humanity, that's one thing...I've never heard referenced that way. I didn't think "shocking the conscience" related to the *end* being sought. Thought it was about the behaviour, the cruelty, of what was being *done* to the ind'l. Would love to know anyone else who's used this phrase in the context you just reference. In fact, it shocks *MY* conscience... I went to Law school, took Catholic school, took 2 periods Latin, took Cicero too...just never heard issue, "shocks conscience" in terms of rel benefit of technique.
Biden: moving on...we're all very proud of what we try to accomplish. One of the things I take great pride in is....(stream prob)
skdadl: 11:01 AM
Biden is being brilliant. Gee: if only he would show up more.
He started off sounding as though he wasn't going to put Mukasey through the wringer on waterboarding, but then he really did. That discussion of what "shocks the conscience" was terrific and tough ... Biden was essentially arguing that it is immoral to abandon means for ends.
And there he ends -- "You guys broke it." Priceless.
kitty again: 11:14 AM
Biden: told "violent crime is down" and the admin's budget is sufficient to deal with the problem. Crime down 2005, 6, 7...but still *high*. Down from high of 1992 (didn't catch numbers), but still high. Hope you'll reconsider utility of Biden Crime proposal, b/c I'm not prepared to accept 1 400 000 violent crimes per 2006. Lies, damn lies and statistics---unacceptable to have this many violent crimes. Based on all data, more cops we have in street, more violent crime drops! ...blah blah blah...
Mukasey: I agree that the strategy is to not tolerate any violent crime. Strat to target where the need is, and get it out there.
Biden: with all due respect, if it's not broke, don't fix it. It wasn't broke. You guys broke it.
11:19
Sessions (R-Alabama): WB "has not been on reckless, not on a wide scale, as I understand it"
Mukasey: that's how I understand it too. (stream cut out)
11:20 AM
Sessions: no USAtty office has tried to prosecute (on a specific area of the US/Mexico border). No results. Arrests decreased 50% in Del Rio. Important to prosecute routine crimes--broken windows idea (Giuliani's NYC model).
(this Lou Dobbs stuff is snoozers, eh?)
11:23 AM
Mukasey: committed to Operation Streamline....different strats at difft parts of border. Releasing entrants at distant parts of border makes it hard for them to hook-up again w/people who brought them to border in first place.
Sessions: I believe this works. I believe you've proven that it works. You may need some more money, but we can afford this. Will you continue to monitor it and support expansion?
Mukasey: I will.
skdadl: 11:08 AM
Sessions: ok.
In a way, I think that Sessions is cute. He's 'way far out right-wing, but I keep remembering that funny exchange he had with Leahy about girlfriends, and how "no one would have me."
He's doing patriotic defence of the troops.
Now he's lobbing softballs at Mukasey over zero-tolerance for illegal entry over the Mexican border ... DoJ doing so much better ...
You don't want to hear this word for word. It's just Sessions setting Mukasey up to look good on lawnorder, especially when it comes to those wetbacks coming over the southwest border.
Oh, boy: you committed to pursuing even more of these entry prosecutions? Guess what the answer is?
kitty again: 11:15 AM
(Leahy entering letters from JAG officers--didn't catch all names--in which they say WB'g is torture)
(stream cut out)
11:26 AM
Kohl (D-Wisconsin): funding for the Burn program cut. (stream cut out)
Kohl: the programs that have been routinely cut by this admin were for kids (delinquency, Title V/juv crime prevention, and junior accountability block program)...these programs need to be re-authorized and well funded. This admin has not supported them. Will funding be a priority of YOURS?
Mukasey: certainly a priority. The president, as part of his budget, has a targetted program for Milwaukee...also have a safe-streets program, anti-gang initiative...looking to use funds intelligently...
Kohl: appreciated. Will follow up on these. On GTMO, last year we talked about long list of security experts who've argued it's in our interests to CLOSE it. Mullen has agreed, publicly. You would not add your name to that list. But said you'd recommend responsible course--you'd get the best advice you could get. Has this advice been given? Prepared to add your name?
Mukasey: President has said he wants to close GTMO, as long as done in responsible way. Case before SC, Boumediene v Bush, and there are a few matters before this court...whether there's a habeas right or whether there's some alternative to HC that would be sufficient...there's another case in DC circuit, involving adequacy of CSRTs and what we can do to improve those. We're conscious of these things...(stream cut out)
11:32 AM
Mukasey: courts should always look at protective order...(WTF is this about?)
Kohl: many court secrecy awards occurred...(I have no f'g Idea what Kohl is talking about...guess he's done w/GTMO?)
11:34 AM
Brownback (R-Kansas): about GTMO, I want to invite you to Leavenworth, to disciplinary barracks, which is the place most often cited to replace GTMO. Don't think we're set for these detainees to move yet. Excellent facility, but not ready for kind of detainees at GTMO. Pragmatically, the current projection to move them to Leavenworth disciplinary---hope you can come and visit, look at these barracks. Command & Gen staff of military office is 3 miles from this disciplinary barracks. Is this wise? Not sure this is a good idea to have GTMO detainees at Leavenworth. Don't think we're ready to handle this.
Mukasey: agree, there are practical limitations. Don't know of any official who believe his state is ready to accept ex-prisoners from GTMO. Effect, legally, is that they'll bring flurry of 1000s of lawsuits, so to just wind up releasing the detainees. Bringing them here would be a whole lot easier.
Brownback: hope you'd come look at facility first.
Mukasey: will do.
Brownback: come to my attn that gov is interested in intervening in Knox v. PLO; some are seeking to vacate judgement of 4 mill dollars? Would hope you'd let citizens (stream cut out)
11:38 AM
(missed about 30 seconds here due to stream)
Brownback: there's a DC gun ban case before SCOTUS. Do you agree w/administration that 2nd amendment protects right to bear arms?
Mukasey: I do. This is a right that is subject to intermediate scrutiny. Regulate guns in hands of felons, but have to make sure they're not swept up in other laws.
Brownback: your view on FISA legislation. Some say we should just substitute fed gove for telecom companies. Your thoughts on this particular issue? Oh, before I go, I wanna thank you for stepping into this job at a tough time...uncomfortable topics...etc. I appreciate you at the end of an admin...God bless you and God speed.
Mukasey: on specific issue of substitution...could open up conduct into methods of scrutiny (Huh?). Can't operate in future w/o a court order means they can't operate in good faith.
skdadl: 11:32 AM
This is a question imagined by perris at emptywheel's, an elaboration of Kennedy's question to Mukasey: “if we waterboarded you until you said waterboarding was torture, how long do you think it would take you to say it and would that testimony from you be of any value at all?”
Exactly.
kitty again: 11:43 AM
(missed her first question--Feinstein)
Feinstein (D-California): it is widely alleged that in the past, at least 3 people were in fact waterboarded.
stream cut out.
Feinstein: both MCA and DTA, combined law for military that WB is prohibited. The loophole is CIA. I proposed amendment to put CIA under army field manual with respect to interrogation. Accepted by House, Senate...if comes to floor of Sen and signed by Pres, once and for all, WBg will be prohibited by gov. I believe how interrogation is done, the timing of it is all important...would like to ask you to describe scenario in top para on page 2, how it would look, legally, if interrogation carried out on a foreign territory. Not a trick question...
Mukasey: not saying that, but...
Feinstein: I assume most of this would take place on foreign territory. Are you saying interrogator would cable CIA director? How would it work, legally?
Mukasey: would require CIA director to become aware--however he becomes aware of a technique, describes how it's done, including safeguards, limits, etc. To me, I consult w/whoever I have to consult w/and then it goes to President.
Feinstein: I'm trying to define process. Don't know if it's legal or not...
Mukasey: does not account for a problem w/communication...
Feinstein: is it legal for an interrogation which involves "EITs" (extraordinary interrogation techniques) to be carried out by non-governmental employee?
Mukasey: (long pause!) As you know, there's what's called an EIT which authorizes CIA to do those programs. Don't know whether it allows subcontractors of CIA--short answer is I don't know...we prosecuted a contractor against offense against prisoner. He got 100 months.
Feinstein: would like to know whether it's legal to contract-out EIT to contractor.
Feinstein: Moving on. You received a letter from Scott Bloch, special counsel, investigations of USAtty firings and alleged politicization at DOJ--it's being impeded by DOJ, letter dated Jan 25th. (stream cut out)
11:50
Feinstein: letter from Bradbury reiterates request that we step down. Assume conflict w/special counsel on this.
Mukasey: Bloch is in an office not w/in DOJ, I believe.
Feinstein: letter outlines whole litany of refusals to cooperate.
Mukasey: will see to it that Bloch gets a response.
Leahy: short break (Sen. Kyl laughs "I'll be real brief!") ...the witness needs a short break.
12:02 PM
Kyl (R-Arizona): (missed first part of his question, stream probs) We have oversight of your dept. Also have other responsibilities, including filling in slots that are now vacant. Can you send us a list of vacant spots, so we can act quickly?
Kyl: re Operation Streamline (what Sessions was talkin aboot); there's a great deterrent effect, knowing if apprehended, going to jail for 60 days. For those coming to work, can't afford 60 days in jail. Apprehensions down significantly in Yuma sector, also prolly due to double fencing, and other factors. You noted some relationship to resources available. For last couple of years, since strong support for law-enforcement etc, Congress willing to spend anything necessary to get this under control. Spent 1.3 bill dollars. We need to know what would be necessary, in terms of add'l detention spaces, additional prosecutors, whatever, to extend this program where it could be efficacious?
Mukasey: will try to send info. Did see the dearth of detention space that causes them to decide which criminals they'll confine and which they'll allow to "roam free." Prisons taking a big hit. Hard for marshalls.
Kyl: detention space a homeland sec issue. Chertoff asked for 43 or 46000 detention spaces. This has been provided now. Aware there's a limit on number of prosecutors. I was accosted this winter (in Arizona) complaining about minimal levels of prosecution. (stream cut out)
12:07 pm
Mukasey: question of judges, how fast cases can move through courts
Kyl: enhanced our ability to apprehend but...(stream cut out)
...
Kyl: (new subject) crime victims are the ones who suffer if this money is taken away.
Mukasey: not singling out victim fund for attacks on management, but victim funds had to pay certain proportion of that for administration. Up until now, there's been enough, but regrettably, this hasn't been the case.
Kyl: we have ability to affect funding. Rather than allowing victims to suffer, would prefer to approp money.
Kyl: new sub. Views on the media shield proposal--could you share those views?
Leahy: could you submit that for me, please?
Mukasey: note only that I'm one of many signatories on a letter from CIA, DOD, etc all of whom have indicated views.
Leahy: could also reiterate Kyl's request of list of vacancies, including list of positions for which there's no nomination at all yet. FBI indicated list of 20 USAtty for which there's no nomination.
Feingold!
12:11 PM
Feingold (D-Wisconsin): thanks for your call on Friday to end disparate treatment of lgbt mems of DOJ. Heartening news. You followed through on your commitment to me at your confirmation hearing.
Feingold: you said you'd not be a yes man. Reading your testimony so far, re McNulty memo, you've embraced president's or DOJ's previous positions w/o reservation. (stream cut out!)
12:09 PM
Feingold: would you be willing to prosecute such crimes (torture)?
Mukasey: I don't see any inconsistency, b/c um...STREAM cut out! (...)
Mukasey: a subcontractor for CIA, abusing a prisoner, no hesitation there (to prosecute). Simply follow the law. My positions may differ from admin, but I do my job, go home, go to sleep.
Feingold: how do you prosecute in this scenario without "tipping off enemy"
Mukasey: if someone is guilty of violating US law, they get prosecuted. Difft from talking about circs in which specific interrogation technique might violate law.
Feingold: as member of intelligence cmtee, I disagree with you--letter I sent to you on Dec 10, when will you come to ccongress in class'd setting, describe interrogation tech by interrogation tech...
Mukasey: letters classified. Remain classified. Agreed to review letters, which do, in fact review techniques. You've asked me to do something difft from what's in letters. Will not do that.
Feingold: you won't come to congress and explain?
Mukasey: details embodied in class'd letters. They explain it far beyond my ability in an 'off the cuff'--no, not off the cuff---with the authorities at hand, who have authority.
Feingold: this is unacceptable. To me, this means explaining your view. We're talking about a class'd setting. NB to have more than a one-way conversation about this. Urge you to reconsider.
Feingold: in your written testimony, you said granting immunity to telecoms essential. Assuming you don't want to encourage telecoms to break the law?
Mukasey: correct
Feingold: let's take situation where telecoms clearly violate law.
Mukasey: don't want to encourage anyone to violate law. Covers helping...
Feingold: FISA been on the books for 30 yrs, not modified or repealed--would telecoms be required to comply?
Mukasey: yes, but now in a regime in which...(stream problems)
12:20 PM
Orrin Hatch up (blech)
Hatch (R-Utah): not only are you sincere, but you're doing your best. Letter you said about interrogation techniques: you've made an effort to be as forthcoming as you can. You wrote that this area involves carefully worded...this is not an area in which hypothetical scenarios are advisable. You're the nation's top lawyer. Your prepared statement addressed FISA reform, and probably most NB piece of legislation we will consider in the 110th congress. Last night we passed only a brief extension. Requires us to intercept communications. Your letter said this takes a sunset-provision--a shorterm approach, in your view. I don't think this is the way to proceed, so that's why I strongly oppose sunset provisions. We didn't have them in 1978. Nearly every one of these amendments have a sunset. Regarding proposal of colleagues, substituting gov in place of telecoms--would this allow 3rd party discovery, class doc requests?
Mukasey: yes & yes. That's what I meant by still litigating, plus costs imposed in terms of meeting these requests.
Hatch: wouldn't this reveal whether the gov had a relationship w/specific telecom?
Mukasey: yes
Hatch: wouldn't it involve revealing info to terrorists and others? I have a letter from McConnell to Kit Bond. E.g. terrorists attempts to obtain guns, and terrorist money transfers, and efforts of an ind'l to become suicide operative. Eg.s of "success" stories of TSP. Are you aware of any instances in which intel analyst used PAA to intercept an American communication?
Mukasey: I am not
Hatch: from intel perspective, reverse targetting makes no sense. But could apply for a warrant. (stream cut out)
skdadl: 12:14 PM
The war. 9/11. Terrism. Mukasey and Hatch are both true believers, and they're having a party on this topic. Lord help us.
Thank God -- here comes Durbin.
Aha. Durbin is bringing up the pictures on Mukasey's wall -- Orwell and Justice Jackson (Durbin didn't mention Jackson, one of the Nuremberg justices -- I just knew that).
Go, Durbin.
kitty again: 12:26 PM
Hatch: essential to use telecoms. Can you elaborate on importance of coop'n w/telecom providers? Have you seen a change in voluntariness of cooperation w/private sector companies? (long whine about poor, wee telecoms...)
Mukasey: have we gotten pushback? Yes. This is a war unlike any other we've ever been involved in. Not involve particular countries, places. These folks live in and among civilian pop'ns. Use all techniques of 20th century (20th?)
Hatch: thank you.
12:27 PM
Durbin (D-Illinois): I asked you who your heroes were. You said you kept pic of Orwell b/c of his essay, Politics and the English language. I respect you for that. In that essay, Orwell was critical of misleading political speech ("concrete melts into the abstract") Mr. AG, I'd say, wrt waterboarding, that the concrete melts into the abstract.
Durbin: still troubled as I listen to your answers. First, you say in your letter to cmtee that reasonable people can disagree wrt WB. Can you cite any court cases, scholars, people of good faith who disagree that WB is not torture? Secondly, when you replied to Biden, you said WB in certain circs would no shock conscience, e.g discovery of nukes. Why has gov discontinued this form of interrogation if there *are* circumstances that justify it? Third, your unwillingness to take an unequivocal position against WB--our troops protected against WB. There are special forces, personnel...(stream cut out)
12:31 PM
Mukasey: some in this chamber have disputed that it wouldn't be legal to engage in certain techniques...and then pull back, if necessary to save American lives
Durbin: the Senate? We've voted on a bipartisan, overwhelming vote to prohibit certain practices, McCain amendment
Mukasey: and the chamber on another occasion declined, viz WBg, and others who said the language was so general that it would open things up to other things that would be so objectionable and cruel...
Durbin: if DTA is so clear, and went so far as to grant amnesty to employees who engaged in it, you still think the jury's out on whether WBg is torture?
Mukasey: question is not whether Sen is "out" on this or that technique, the question is whether Sen has spoken clearly enough in legislation it has passed, and that Pres has signed, which is all anybody has to work with
Durbin: where is lack of clarity in McCain legislation?
Mukasey: the words, people on both sides of debate, to point to "this" or "that" seems to me is to pick nits at this point
Durbin: as chairman has noted, Sens McCain, Warner and Graham (sponsors of legislation) that under MCA, WBg is a "warcrime." At this moment, you have employees of yours in Iraq, counselling employees not to use torture. Your testimony so far is that "it depends on circumstances"--we're trying to teach to the world, a standard we want our own people to live by?
Mukasey: the reasons I outlined are already matters of record. As to your second question, you suggest ....
Durbin: Sen Biden's question? About "shocking conscience"?
Mukasey: what I described was a situation in which it *would* shock conscience. It was put in place by the peson who wrote the decision. Not by me
Durbin: I assume you were arguing that the use of such techs to discover nukes would not shock conscience?
Mukasey: No...that's not what I said
Durbin: what about circumstances where tech would save lives?
Mukasey: not part of program. Don't know how that would work
Durbin: under military standards, they're not interested in danger. They say unequivocally. You say, for non-military it's still unresolved?
Mukasey: still unresolved. I've not been presented with a concrete situation. (stream cut out)
skdadl: 12:21 PM
Kitty: I can't stand Mukasey.
"Pick nits"??? Who is picking nits? This man is so dreadful. Others "pick nits": he exercises "due caution."
I can't bear this. We're listening to the Federalist Society. "I have not been presented with a concrete situation." A human one, neither, it appears.
Recess till 2.
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