US Attorney Gen. Michael B. Mukasey testified before the Sen. Judiciary Committee today. As with this morning's testimony, skdadl and I continued to follow the proceedings as closely as our c-span streaming abilities would allow. The following is a collection of our notes from this afternoon's testimony. Our notes from this morning are available here.
***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, 5:18 PM]: I have cleaned up our notes from yesterday and annotated with links, as appropriate. Hope you find these useful!
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2:07 PM
(Leahy's reconvened the hearing. Lots are missing b/c of other Senate business like the stimulus pkg, etc)
Cornyn (R-Texas): Open Government Act 2007--Leahy and I have been working the FOIA (stream cut out)
Cornyn: as a former judge, anything that can avoid litigation and resolve things informally is a good thing. Let me address FISA reform. Our leaders have announced 15 day extension, which is kicking the can down the road; something we should do on a perm basis. Yesterday I talked to father of man killed in Iraq, following kidnapping by al Qaeda. I detailed troubling facts highlighted by NY Post Oct 15, 2007, "Wire Law failed lost GI" detailing delay of FISA application, which would not have been necessary if our amendment/revision had past. In talking to the late-soldier's father yesterday, he expressed concern that if, in fact this FISA wasn't passed on a perm basis, that wouldn't require a lengthy process, that his son might be here today.
***THIS IS BULLSHIT--that story was thoroughly debunked!***
skdadl: 1:59 PM
Cornyn: The ticking time-bomb meme. Feeds Mukasey an easy answer.
Be scared, everyone! Be scared! That is the entire logic of these criminals.
Hey!
Whitehouse is up!!! Yay!!!
kitty again: 2:12 PM
Mukasey: you put a human face on a problem we're trying to prevent from occur(ing). We wannu make sure that it's clear, to lower the burden on the gov to--in all its presentations to FISA--to make sure that all that has to get approved is procedures, and not get into a case-by-case basis. I hope that the DOJ acted in all the speed it could, in that case (Cornyn's).
Cornyn: I agree. I know there's been questions about interrogation, WBg and the 'ticking time bomb' scenario. I understand your hesitancy...in your response, it depends on the facts. Care to comment on the latitude that has to be provided--every means to get intelligence? (stream cut out)
Mukasey: there are circumstances where it's clearly lawful, and I'm not gonna give anybody the playbook or call into question what may/may not have been done.
Sen. Whitehouse (D-Rhode Island): Referring to your Jan 29 letter, it strikes me that, in its mode of analysis, you've assumed the role in essence of corporate counsel to executive branch. To ensure no law-breaking currently going on, but unwilling to look back and dredge up past unpleasantness and potentially creating liability of "corporation." You are not just "corporate counsel" to exec branch. You're also the prosecutor. Top law enforcement officer of US. They *do* look back, *do* dredge up past, in order to get justice. Mission statement of DOJ is to seek justice...case of US v. Berger, sovereignty of whose interests is that justice be done--use every legit means to bring about justice. The Pres has said we will investigate & pros *all* acts of torture. You just said if people violate laws of US, they'll get prosecuted. Sec 23-40 A, whoever commits torture, will sentenced to 20 yrs...or punished by death or any term of years. Jurisdiction over person if national of USA. So...we have a statute. You are the sole prosecuting authority of this statute, correct?
Mukasey: yes
Whitehouse: in your prosecutor's responsibility...not your advisory authority...could you tell me, in what way, looking back, there's an absence of concrete facts & circumstances about WBg that apply?
Mukasey: let's talk about my hats. Says "AG of US"...number of duties, but no divided responsibility or loyalty.
Whitehouse: look at your job of enforcing law
Mukasey: one of questions of past conduct--what authorizations were given? Current evaluation of statute has only tangentially to do with that. If directly to do with that, your authorization is good only...(stream cut out)
2:21 PM:
Whitehouse: but you're saying "I had authorization"...has there been a thorough, independent analysis of whether or not any national of US is in violation of this statute?
Mukasey: I don't start investigations out of curiosity. No such indication now.
Whitehouse: but destruction of tapes of interrogation was a criminal act--an issue--there, we have a counsel geared up to determine whether laws were violated, but whether the interrogation itself was criminal--isn't that worthy of investigation?
Mukasey: preliminary inquiry made about destruction of tapes--showed some reason to suggest violation, met the low-bar, we were required to and did begin a criminal investigation
Whitehouse: there's evidence an interrogation took place--why not look?
Mukasey: evidence of an interrogation and crime are two diff things
Whitehouse: could or could not be a crime. No distinction between standards?
Mukasey: but destruction of tapes could have been w/o authorization. All that started was preliminary inquiry--showed crime possible.
Whitehouse: how does that not meet Nuremberg? It appears interrogators following orders, but destroyers of tapes were not?
Mukasey: you're assuming interrogation unlawful
Whitehouse: not assuming any such thing. Should be at least *somebody* who takes a look at this. If you're telling me this hasn't even been investigated, but *tape destruction* is investigated, seems like discrepancy...
(WH time's up but he still has more)
skdadl: 2:09 PM
Nuremberg.
Sheldon Whitehouse is wonderful and brave beyond belief. He can make other people brave. God, this is wonderful. applause
Ok, Chuck ... 'Splain yrself.
kitty again: 2:26 PM
Schumer (D-New York) (blech!): you've been good and bad. You launched investigation of CIA tape destruction---good. You recalled a much criticized USAtty---good. Helped LGBT at DOJ and improved morale---good. On other issues, especially relating to exec power and torture, they differ dramatically from my view. Nonetheless, I thought there was a hope that you might just rise to the occasion. I remain disappointed.
Schumer: on WBg, you've had a chance to educate yourself about coercive methods of interrogation, (stream cut out)...Feinstein was a co-sponsor of this legislation--do you support a ban on WBg, by statute or exec order?
Mukasey: as a gen matter, matter of princ, I try to avoid using the blank canvass of existing laws to paint my own beliefs of something's repugnant or not. A question that other people 'own' a substantial part of answer. Intelligence officers, state dept, all of those people have to be heard. One of the things I'd wannu do before expressing my own view, as a junior mem of all these people, I'd like to hear them.
Schumer: I know you'd like to hear them, but one of your roles as AG is not just the decider, but I find it hard to understand why you, personally, can't say that something repugnant should be illegal. There's a statute that's very likely to get to the pres's desk, what advice would you give pres? Your personal view: should WBg be outlawed? You said once it was repugnant. why do you all of a sudden need to ask other people?
Mukasey: don't want to trivialize it. Avoid telling you all the other things I find repugnant. whether it is or isn't, taken by itself, isn't the basis of my recommendation to (pres?) other people. Want to get advice, etc.
Schumer: you discussed with Biden and Durbin, you would have to consider circumstances. Before your confirmation, you didn't say that: you said it's repugnant. You have an opportunity to be something of a leader. (stream cut out)
Schumer: people on the battlefield say it should be outlawed. *You* can't say that? Doesn't put the people you supervise in jeopardy.
Mukasey: when I was a judge, I was not a settling judge. (stream cut out)
skdadl: 2:18 PM
What?!? Specter is endorsing Bradbury?!?
skdadl: 2:22 PM
GAH!!!! Specter is attacking Fitz!!!!
Where the hell did that come from?!?
kitty again: 2:34 PM
Specter: questions about Steven Bradbury's renomination. Wanted to give you my endorsement of Bradbury. Worked with him 2 yrs ago, on leg to bring TSP into FISA. Found him to be an excellent lawyer, involving top secret matters, important legal issues. Hope he'll be confirmed. BLECH!!!!
Specter: I wrote to you November 13, 2007 letter--one matter about reporters' shield and another on attorney/client privilege. Want to move promptly on leg about the latter, and eventually, the former as well.
Specter: reporters' shield passed easily, w/strong support. Well in excess of 2/3 in House, and Sen committee. There had been a citation that there'd only been 24 subpoenas issued to reporters. Sen Grassley said 88 subpoenas issued (??). Matter came into sharp focus on the jailing of NYT Judy Miller. Still at a loss as to why Fitz got a contempt citation. Disclosed that the source was Armitage, and many indications of chilling effect of what DOJ has done. If you had some modifications on a balancing test--congress should do what it can to protect vital national security interests. Accommodation could be reached (this is BULLSHIT).
Specter: about McNulty memo. Case of US vs. Skye (sp??) calling gov's conduct "shocking the conscience." Commonwealth has burden of proof. Leahy and I have experience in prosecution in Penn, Vermont...Sen Whitehouse in Rhode Island. Place is full of (prosecutors). (stream cut out)
Mukasey: put in place another memo to prosecutors/USAtty, detailing when it is that testimony can be sought. Categories of privilege.
Specter: I'd like this to be a followup matter for us to sit & talk. Fmr. AG Meese has criticized the issue and McNulty memo. Can come to an accord on that.
Mukasey: under McNulty memo, there have been zero requests for a waiver of attorney/client priv. Corporations have been allowed to ask for that as a consideration, for avoiding an indictment--to say that they can't do that is to sac their right to judge what's good for them.
Specter: other points. In Wall St J, report that the FBI investigating insider trading on subprime. Give that a very high priority--we're considering legislation by Durbin and myself on this.
Specter: last point, could take a fresh look at contempt citations against exec branch officials. Bad to have them outstanding, as they're just "messengers" (please!) Leahy and I have tried to work out a formula for getting Miers et al before us. If we could come to terms on the transcript, might be able to unlock the controversy. In your confirmation, you spoke favourably about transcript. Pres appeared on TV and said he would make avail Miers and others as long as no oath is administered. Oath is desirable, but would be willing to waive it. Could be accommodated. Joint inquiry with House and Sen. Pres didn't want it public, but I think that's bad. Transcript is indispensable, more for the witness than anybody else. Could you revisit this? Contempt citations will amount to wheel-spinning, take years to resolve. (stream cut out)
Mukasey: serious separation of powers issues will be raised. Historically, exec power and oversight have been accommodated.
Specter: isn't the matter of immunity a matter for the courts? Oughta be a judicial determination, not an ex parte executive decision...(didn't get M's answer)
Specter: where does that immunity come from? President?
Mukasey: constitution.
Specter: I don't think that's correct. Enforcement of contempt citation is matter for judicial branch. Would you be willing to revisit this?
Mukasey: willing to find an accommodation, but don't want to suggest I'd be willing to overturn longstanding tradition
Specter: there's no longstanding tradition against transcripts?
Mukasey: I ...I don't know
Specter: (strongly disagrees) You're suggesting you don't know? Well let's try to find out.
Leahy: at least one witness who testified claimed exec privilege partially, said she never discussed matters w/pres, and frankly we found the claim of exec priv to be a tad broad. Don't wannu use the word "cover up" but that's the first and second thing that occurred to me.
Leahy: let me followup on Sen Whitehouse's questions on CIA tapes...stream cut out
2:51 PM
Leahy: John Durham is doing this b/c normally it'd be the USAtty for E. Virginia, who's recused himself. Why'd he recuse himself? (stream cut out)
Mukasey: E. district of Virginia has a requirement that at least one mem (of team?) be a member of the bar of this district. Not necessarily a recusal b/c conflict of interest. Facts were teased out to present possibility that there *may* be a conflict.
Leahy: can you assure us that nobody else in Durham's office will have a conflict?
Mukasey: selected to reduce that possibility. Durham is the man to whom they report.
Leahy: asked first became aware of when CIA tapes destroyed?
Mukasey : no, I don't (remember)
Leahy: when did DOJ officials become aware of videos of interrogations?
Mukasey: don't know
Leahy: did they ever view tapes?
Mukasey: don't know. And what was done in dept wouldn't be something I'd disclose if I knew it
Leahy: (confused and annoyed) Perhaps you & I should discuss it in private, with Sen Specter. If they *had* viewed them, then there'd be a reason to ask, who gave the order to destroy them.
Mukasey: order to destroy is separate from whether anyone in DOJ viewed them
Leahy: depends on *when* they viewed them, e.g. was anyone in dept asked about legality of destroying tapes
Mukasey: seen no evidence of someone in DOJ being asked about legality of tape-destruction. In any case, John Durham will be investigating. (stream cut out)...I first knew about it when I opened the paper that day (it reported)
Leahy: (makes joke about marking NYTimes, WaPo "Top Secret")
Mukasey: if I knew before that (article), I forgot.
Leahy: do you have any problems with (Durham??) testifying before this committee?
Mukasey: USAtty have never testified in pending cases--see no case for an exception, here.
Leahy: we may come back to that. You doubtless heard about how the Whitehouse, despite being required by law to archive emails, now say that, over a period of two years, destroyed email.
Mukasey: saw story that said there were emails there, that shouldn't be there (?? backwards)
Leahy: also told they'd used RNC (Republican National Cmte) emails, then said "oops" and destroyed them. If not following archive laws, e.g. Congress had questions about that in the last administration. Isn't this something you could look into?
Mukasey: depends on retention...
Leahy: if certain records were retained, and some destroyed, wouldn't that raise questions in your mind? I would hope the AG would have questions, too.
3:01 PM
Grassley (copy of his statement, questions for Mukasey): former AG recruited outside forensic experts in last admin. One result was that the FBI put people with expertise in position of forensics. Now the FBI is saying that neither Arabic skills, nor expertise needed for counterterrorism---isn't this like not having a forensics scientist in their old crime lab?
(sorry, Grassley's speaking really quickly and the stream cut out again!)
Grassley: What action has your office taken to investigate concerns Oct 11, 2007 letter from Mr. Youssef (whistleblower?)
Mukasey: don't know
Grassley: he wants to know why FBI impeding his counterterrorism efforts. We have someone in FBI saying our efforts being weakened, and we have to wait for courts? While we're under threat of attack every day?
Mukasey: we are (under threat) but FBI reviewing its efforts. I'm actively involved.
Grassley: Youssef also discovered/identified NSLetters. Staff claimed didn't know about letters at time. According to IG, they *did* know about letters as early as 2004. shouldn't have to wait till IG report to know. DOJ promised info about these NSLetters, but only received small batch of heavily redacted letters. It's been about a full year since we asked.
Mukasey: I'll followup. IG report lead to changes in oversight, issuance of letters. These oversights should be given a chance to work. Problem is lack of oversight.
Grassley: in this week's SOTU, the pres spoke of increasing work-site enforcement in terms of immigration. Actively pursuing employers--is this a priority for DOJ?
Mukasey: I do.
Grassley: Sen Bond and I wrote you about a woman FBI agent who pleaded guilty about immigration status--Prouty, overstayed visa, arranged marriage, brother in law was a Hezbollah supporter. FBI ignored all this b/c they thought she was checked out. Will agents who were originally citizens of high-risk countries be subject to increased security checks? etc etc (stream cut out)
3:09 PM
Mukasey: FBI does internal security reviews on an ongoing basis.
Leahy: I know Grassley, you had a great deal of interest in these subjects. Regardless of whether it's a Dem or GOP president.
Sen Whitehouse!!!!!
Sen Whitehouse: want to sort out process question, about whether WBg torture. You said you're not going to engage your advisory capacity, b/c you disclosed that WBg isn't part of CIA's interrogation regime. Under 23 40A, uses torture in Statute, there *are* concrete facts that would justify an analysis--there are arguably, whatever it is, it *is.* Trying to determine if the analysis is taking place, if you are waiting for Durham's investigation to determine what happened, or if there's been a policy determination made, since there's a claim of authority made...or some fourth category?
Mukasey: process for coming to any determination, that facts come into the DOJ that start any investigation. Durham's investigation might spark an investigation of what was on the tapes...
Whitehouse: couldn't we engage in a concrete investigation that would at least give cause to an inquiry?
Mukasey: wouldn't be a concrete discussion
Whitehouse: in a classified setting, it may or may not be an "If"
Mukasey: ummm....(long pause)...not sure what that suggests
Whitehouse: trying to be careful not to step outside boundaries I'm obliged to honour here, not disclosing class'd info. Same time, want more info, b/c not fair to say that nobody has any basis from anywhere---read news, TV, former CIA official on airwaves---if that's not the first red flag to get an investigation going forward, I don't know what *would* be! Just a public view of the matter suggests ....(stream cut out)
skdadl: 3:00 PM
We are listening to the doctrine of the Federalist Society.
Shorter Federalist Society: We follow orders.
Fight, Sheldon. But you're not gonna break through this guy's shell.
kitty again: 3:15 PM
Whitehouse: there's no exemption, no Nuremberg defence built into this 23 40 A statute. Once investigation underway, could determine whether it was necessary or not....but you're telling me that the certification alone tells me that it's not necessary? Not gonna look at this no matter what? Just say so.
Mukasey: not my position. My position is that we're not going to speculate.
Whitehouse: but the investigation is just the destruction of tapes--unless you're telling me that this is the only way we might lead into an investigation of WB'g?
Mukasey: let's not hypothesize. It's a question of telling agents out there that we're investigating CIA based on speculation about whether or not they're breaking the law
Whitehouse: would like to applaud you for re-erection of firewall between DOJ and Whitehouse. WE're at lagerheads about this issue, but I want to applaud you for this particular work (firewall)
Mukasey: this is a good faith exchange
Whitehouse: I also want to be fair
Mukasey: me too
Leahy: Mr AG, the FOIA legislation that we worked on, that was passed, signed into law by Pres, that required the office of gov info services (OGIS, archives, records)...now we see DOJ 2009 budget for administration, there's an attempt to move OGIS into DOJ. The law says keep it in National Archives, as far away from gov.
3:20 PM
Cardin (D-Maryland): (stream cut out) we all acknowledge the horrible process it is...from an int'l perspective, we're tarnished when we try to justify any torture. It's going to be difficult for us to protect American interests when others try these techniques on *our* soldiers. I know you're new to the office, but I believe clarity is needed here. Not asking for further response (today). I'm involved in Helsinki commission on Human Rights. Difficult to explain why admin is hedging on this issue.
Cardin: on FISA, re: retroactive immunity, I'd urge you to consider Specter's comment on potential abuses and whether retroactive immunity could have permanent damage on role of judiciary on protecting civil rights and issues of Americans. Need to preserve role of courts--applaud Specter and Whitehouse for their proposal.
Cardin: re sunset of PAA, b/c predictability of statute. I have an amendment for a sunset, too. If there isn't a sunset, then the level of cooperation between agencies and level of engagement by Congress isn't as much.
Cardin: Need to get, in this hearing, to election issues and civil rights division. We have an election coming up in 2008. If like 2006, then there will be efforts made to suppress minority voting. We agree that should have no place in US politics. (stream cut out)
skdadl: 3:14 PM
Oh, yay. Sheldon is going after the OLC.
kitty again: 3:26 PM
Mukasey: sent memo to all prosecutors, that their sensitivities have to be heightened at time of elections--but also discouraged from temptation of bringing prosecutions too close to elections. Shouldn't be any perception of partisanship. Investigations should only be carried forward if it's ready to go--not based on timing of elections.
Cardin: if office learns of activities that are aimed at suppressing vote, e.g minorities will be arrested if unpaid parking tickets, I just hope it's clear DOJ will prosecute such things.
Mukasey: we've discussed examples that are clearly fraudulent. We'll make every effort and use every resource to make sure that doesn't happen.
Cardin: thank you. Regarding civil rights division: I ask you to give personal attn to this division and return it to historic role as protector of rights of minorities--empower all people to civil liberties.
Mukasey: we observed that division's 50th anniversary. Emblematic of role of DOJ. I met w/nominee to head that division, and met w/unit chiefs of division. It's my belief that they should be encouraged.
Cardin: I look forward to working with you in that regard. Look forward to the confirmation process for Asst. US Atty in that division.
Sen. Whitehouse: put my last question in form of letter, re Office of Legal Counsel, for Dept. Some declassified sections of highly classified opinions make me worry that it's become an ideological hothouse, b/c removed from scrutiny by classification shield. Appreciate Chairman's indulgence.
Leahy: I'm interested in that, too.
Mukasey: the book you refer to re: OLC, says regardless what you think about those opinions, nobody in that unit thought they were violating the law or ever intended....(stream cut out)
3:33 PM
Leahy: two different writers who often had two diff views--one said Durham would report to Dep. AG, who reports to AG, and therefore will not be ...(what???)
Leahy: and then Bruce Fein said if the AG was still entrusted to det whether state secrets still allowed would be like Nixon determining what evidence to give Archibald Cox (investigating Watergate)
Leahy: I read both quotes and thought, why not just give a special counsel like Patrick Fitzgerald in the CIA leak case?
Mukasey: there are rules about when to appt special counsel. Only in a situation of a conflict.
Leahy: there may have been a conflict, but not within your office? The DOJ?
Mukasey: right. Don't want to tell DOJ we don't have faith in you.
Leahy: but that's why I asked why E.District Virginia USAtty recused himself?
Mukasey: (didn't catch response)
skdadl: 3:20 PM
Awwww ... JamesComey
skdadl: 3:24 PM
Good going, Durbin: he is pushing Mukasey on the subject of Bradbury's memos. Comey warned that the department would be ashamed of those memos. Mukasey has lauded Bradbury.
Kitty: did you get the quote about Comey? That was shameless, really shameless. Also not fully literate -- he said Comey's opinions were not "inevitable"? WTF? does that mean?
kitty again: 3:36 PM
Durbin: do you remember former Acting AG James Comey? Opinion?
Mukasey: yes, he appeared before me as a lawyer. I was Chief Judge in his district. I've since had occasion to talk with him and get his counsel on the DOJ in general. He's a sound, able person...
Durbin: you respect him. So let me ask you about a man by the name of Steven Bradbury. *****stream cut out*******
Durbin: ...when Comey was asked about some of Bradbury's (torture) memos, he said the DOJ would be "ashamed" if these memos became public. But you were quoted as giving (glowing praise of Bradbury)
Mukasey: you asked me if I know Comey, but I've also come to know Bradbury, and worked more closely with him since I've been there. To say that Comey has good judgement isn't to say that he's inevitable or that his judgement of one document is a permanent scar on that doc.
Durbin: there's the area of interrogation & torture and warrantless wiretapping--have you reviewed the opinions he wrote on these?
Mukasey: I've reviewed it w/assistance of others and determined that that program is lawful.
Durbin: did you read the opinion of "combined effects" (multiple torture techniques at once)
Mukasey: yes
Durbin: Gonzo approved this opinion over objection of Comey, who said DOJ would be ashamed if it became public
Mukasey: the opinion was dated 2007, so that doesn't make sense
Durbin: I don't think the timing works out either. would you go back and review? And return to us?
Mukasey: ok
Durbin: I asked you to review all of Bradbury's opinions at your confirmation hearing, and I have serious reservations, as he's serving in violation of the vacancies reform act. Do you think he's the effective head as the OLC?
Mukasey: I've dealt with him as the princ person at OLC
Durbin: isn't his presence in that role in violation?
Mukasey: I believe he's been renominated
Durbin: I believe he has been too, but I think his presence in that role is in violation. I will ask you again to read Mr. Bradbury's opinions.
Mukasey: I would think that those opinions would be (irrelevant 'cause old)
Durbin: I don't think that's adequate: to ignore past opinions...
Mukasey: I would say that his opinion was not *his* opinion (???? WTF?????)
3:45 PM
(missed about 40 secs due to stream)
Leahy: we've seen what's happened when decisions made in secret, in memos---erodes liberties and undermines us as a nation of laws. Not enough to say WBg not authorized. Should say, "it's wrong." "It's illegal." I put in a letter from (JAG officers) and I want to quote: "WBg is inhumane, it is torture and it is illegal." They quote sitting JAG, in which these sitting JAGs unanimously and unambiguously agreed it's illegal and in violation of law. I'm afraid when admin won't declare WBg off limits...we've seen it in other regimes, that they cite the US. Danger to Americans around world. Degrades humanrights everywhere. At the World Economic Summit last week, wonder why we can't just say unequivocally that this is wrong. No Senator would have to know the circs or "justification" used to do this to an American abroad. We'd just condemn it. It's unfortunate that our AG can't even say that WB'g an AMERICAN is illegal. Oversight makes America work better. See Senator Grassley--a Republican. One thing you should know: many of us feel there should have been different, better answers. Want the DOJ to be the best of any such dept in the world. We'll disagree but we'll work with you. Mr. AG you're free to say anything you'd like.
3:49 PM
Mukasey: (stream cut out) ...I'm grateful to you (Leahy) and mems of cmtee to work together. Can't ask any more than that.
Leahy: in my 34th yr in Senate, who looks at my earlier career as a prosecutor, a highlight in my life, I *will* work with you to make things better. When this president leaves, we want to leave it in the best possible shape for the *next* president, whoever that is.
*adjourned*
***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, 5:18 PM]: I have cleaned up our notes from yesterday and annotated with links, as appropriate. Hope you find these useful!
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2:07 PM
(Leahy's reconvened the hearing. Lots are missing b/c of other Senate business like the stimulus pkg, etc)
Cornyn (R-Texas): Open Government Act 2007--Leahy and I have been working the FOIA (stream cut out)
Cornyn: as a former judge, anything that can avoid litigation and resolve things informally is a good thing. Let me address FISA reform. Our leaders have announced 15 day extension, which is kicking the can down the road; something we should do on a perm basis. Yesterday I talked to father of man killed in Iraq, following kidnapping by al Qaeda. I detailed troubling facts highlighted by NY Post Oct 15, 2007, "Wire Law failed lost GI" detailing delay of FISA application, which would not have been necessary if our amendment/revision had past. In talking to the late-soldier's father yesterday, he expressed concern that if, in fact this FISA wasn't passed on a perm basis, that wouldn't require a lengthy process, that his son might be here today.
***THIS IS BULLSHIT--that story was thoroughly debunked!***
skdadl: 1:59 PM
Cornyn: The ticking time-bomb meme. Feeds Mukasey an easy answer.
Be scared, everyone! Be scared! That is the entire logic of these criminals.
Hey!
Whitehouse is up!!! Yay!!!
kitty again: 2:12 PM
Mukasey: you put a human face on a problem we're trying to prevent from occur(ing). We wannu make sure that it's clear, to lower the burden on the gov to--in all its presentations to FISA--to make sure that all that has to get approved is procedures, and not get into a case-by-case basis. I hope that the DOJ acted in all the speed it could, in that case (Cornyn's).
Cornyn: I agree. I know there's been questions about interrogation, WBg and the 'ticking time bomb' scenario. I understand your hesitancy...in your response, it depends on the facts. Care to comment on the latitude that has to be provided--every means to get intelligence? (stream cut out)
Mukasey: there are circumstances where it's clearly lawful, and I'm not gonna give anybody the playbook or call into question what may/may not have been done.
Sen. Whitehouse (D-Rhode Island): Referring to your Jan 29 letter, it strikes me that, in its mode of analysis, you've assumed the role in essence of corporate counsel to executive branch. To ensure no law-breaking currently going on, but unwilling to look back and dredge up past unpleasantness and potentially creating liability of "corporation." You are not just "corporate counsel" to exec branch. You're also the prosecutor. Top law enforcement officer of US. They *do* look back, *do* dredge up past, in order to get justice. Mission statement of DOJ is to seek justice...case of US v. Berger, sovereignty of whose interests is that justice be done--use every legit means to bring about justice. The Pres has said we will investigate & pros *all* acts of torture. You just said if people violate laws of US, they'll get prosecuted. Sec 23-40 A, whoever commits torture, will sentenced to 20 yrs...or punished by death or any term of years. Jurisdiction over person if national of USA. So...we have a statute. You are the sole prosecuting authority of this statute, correct?
Mukasey: yes
Whitehouse: in your prosecutor's responsibility...not your advisory authority...could you tell me, in what way, looking back, there's an absence of concrete facts & circumstances about WBg that apply?
Mukasey: let's talk about my hats. Says "AG of US"...number of duties, but no divided responsibility or loyalty.
Whitehouse: look at your job of enforcing law
Mukasey: one of questions of past conduct--what authorizations were given? Current evaluation of statute has only tangentially to do with that. If directly to do with that, your authorization is good only...(stream cut out)
2:21 PM:
Whitehouse: but you're saying "I had authorization"...has there been a thorough, independent analysis of whether or not any national of US is in violation of this statute?
Mukasey: I don't start investigations out of curiosity. No such indication now.
Whitehouse: but destruction of tapes of interrogation was a criminal act--an issue--there, we have a counsel geared up to determine whether laws were violated, but whether the interrogation itself was criminal--isn't that worthy of investigation?
Mukasey: preliminary inquiry made about destruction of tapes--showed some reason to suggest violation, met the low-bar, we were required to and did begin a criminal investigation
Whitehouse: there's evidence an interrogation took place--why not look?
Mukasey: evidence of an interrogation and crime are two diff things
Whitehouse: could or could not be a crime. No distinction between standards?
Mukasey: but destruction of tapes could have been w/o authorization. All that started was preliminary inquiry--showed crime possible.
Whitehouse: how does that not meet Nuremberg? It appears interrogators following orders, but destroyers of tapes were not?
Mukasey: you're assuming interrogation unlawful
Whitehouse: not assuming any such thing. Should be at least *somebody* who takes a look at this. If you're telling me this hasn't even been investigated, but *tape destruction* is investigated, seems like discrepancy...
(WH time's up but he still has more)
skdadl: 2:09 PM
Nuremberg.
Sheldon Whitehouse is wonderful and brave beyond belief. He can make other people brave. God, this is wonderful. applause
Ok, Chuck ... 'Splain yrself.
kitty again: 2:26 PM
Schumer (D-New York) (blech!): you've been good and bad. You launched investigation of CIA tape destruction---good. You recalled a much criticized USAtty---good. Helped LGBT at DOJ and improved morale---good. On other issues, especially relating to exec power and torture, they differ dramatically from my view. Nonetheless, I thought there was a hope that you might just rise to the occasion. I remain disappointed.
Schumer: on WBg, you've had a chance to educate yourself about coercive methods of interrogation, (stream cut out)...Feinstein was a co-sponsor of this legislation--do you support a ban on WBg, by statute or exec order?
Mukasey: as a gen matter, matter of princ, I try to avoid using the blank canvass of existing laws to paint my own beliefs of something's repugnant or not. A question that other people 'own' a substantial part of answer. Intelligence officers, state dept, all of those people have to be heard. One of the things I'd wannu do before expressing my own view, as a junior mem of all these people, I'd like to hear them.
Schumer: I know you'd like to hear them, but one of your roles as AG is not just the decider, but I find it hard to understand why you, personally, can't say that something repugnant should be illegal. There's a statute that's very likely to get to the pres's desk, what advice would you give pres? Your personal view: should WBg be outlawed? You said once it was repugnant. why do you all of a sudden need to ask other people?
Mukasey: don't want to trivialize it. Avoid telling you all the other things I find repugnant. whether it is or isn't, taken by itself, isn't the basis of my recommendation to (pres?) other people. Want to get advice, etc.
Schumer: you discussed with Biden and Durbin, you would have to consider circumstances. Before your confirmation, you didn't say that: you said it's repugnant. You have an opportunity to be something of a leader. (stream cut out)
Schumer: people on the battlefield say it should be outlawed. *You* can't say that? Doesn't put the people you supervise in jeopardy.
Mukasey: when I was a judge, I was not a settling judge. (stream cut out)
skdadl: 2:18 PM
What?!? Specter is endorsing Bradbury?!?
skdadl: 2:22 PM
GAH!!!! Specter is attacking Fitz!!!!
Where the hell did that come from?!?
kitty again: 2:34 PM
Specter: questions about Steven Bradbury's renomination. Wanted to give you my endorsement of Bradbury. Worked with him 2 yrs ago, on leg to bring TSP into FISA. Found him to be an excellent lawyer, involving top secret matters, important legal issues. Hope he'll be confirmed. BLECH!!!!
Specter: I wrote to you November 13, 2007 letter--one matter about reporters' shield and another on attorney/client privilege. Want to move promptly on leg about the latter, and eventually, the former as well.
Specter: reporters' shield passed easily, w/strong support. Well in excess of 2/3 in House, and Sen committee. There had been a citation that there'd only been 24 subpoenas issued to reporters. Sen Grassley said 88 subpoenas issued (??). Matter came into sharp focus on the jailing of NYT Judy Miller. Still at a loss as to why Fitz got a contempt citation. Disclosed that the source was Armitage, and many indications of chilling effect of what DOJ has done. If you had some modifications on a balancing test--congress should do what it can to protect vital national security interests. Accommodation could be reached (this is BULLSHIT).
Specter: about McNulty memo. Case of US vs. Skye (sp??) calling gov's conduct "shocking the conscience." Commonwealth has burden of proof. Leahy and I have experience in prosecution in Penn, Vermont...Sen Whitehouse in Rhode Island. Place is full of (prosecutors). (stream cut out)
Mukasey: put in place another memo to prosecutors/USAtty, detailing when it is that testimony can be sought. Categories of privilege.
Specter: I'd like this to be a followup matter for us to sit & talk. Fmr. AG Meese has criticized the issue and McNulty memo. Can come to an accord on that.
Mukasey: under McNulty memo, there have been zero requests for a waiver of attorney/client priv. Corporations have been allowed to ask for that as a consideration, for avoiding an indictment--to say that they can't do that is to sac their right to judge what's good for them.
Specter: other points. In Wall St J, report that the FBI investigating insider trading on subprime. Give that a very high priority--we're considering legislation by Durbin and myself on this.
Specter: last point, could take a fresh look at contempt citations against exec branch officials. Bad to have them outstanding, as they're just "messengers" (please!) Leahy and I have tried to work out a formula for getting Miers et al before us. If we could come to terms on the transcript, might be able to unlock the controversy. In your confirmation, you spoke favourably about transcript. Pres appeared on TV and said he would make avail Miers and others as long as no oath is administered. Oath is desirable, but would be willing to waive it. Could be accommodated. Joint inquiry with House and Sen. Pres didn't want it public, but I think that's bad. Transcript is indispensable, more for the witness than anybody else. Could you revisit this? Contempt citations will amount to wheel-spinning, take years to resolve. (stream cut out)
Mukasey: serious separation of powers issues will be raised. Historically, exec power and oversight have been accommodated.
Specter: isn't the matter of immunity a matter for the courts? Oughta be a judicial determination, not an ex parte executive decision...(didn't get M's answer)
Specter: where does that immunity come from? President?
Mukasey: constitution.
Specter: I don't think that's correct. Enforcement of contempt citation is matter for judicial branch. Would you be willing to revisit this?
Mukasey: willing to find an accommodation, but don't want to suggest I'd be willing to overturn longstanding tradition
Specter: there's no longstanding tradition against transcripts?
Mukasey: I ...I don't know
Specter: (strongly disagrees) You're suggesting you don't know? Well let's try to find out.
Leahy: at least one witness who testified claimed exec privilege partially, said she never discussed matters w/pres, and frankly we found the claim of exec priv to be a tad broad. Don't wannu use the word "cover up" but that's the first and second thing that occurred to me.
Leahy: let me followup on Sen Whitehouse's questions on CIA tapes...stream cut out
2:51 PM
Leahy: John Durham is doing this b/c normally it'd be the USAtty for E. Virginia, who's recused himself. Why'd he recuse himself? (stream cut out)
Mukasey: E. district of Virginia has a requirement that at least one mem (of team?) be a member of the bar of this district. Not necessarily a recusal b/c conflict of interest. Facts were teased out to present possibility that there *may* be a conflict.
Leahy: can you assure us that nobody else in Durham's office will have a conflict?
Mukasey: selected to reduce that possibility. Durham is the man to whom they report.
Leahy: asked first became aware of when CIA tapes destroyed?
Mukasey : no, I don't (remember)
Leahy: when did DOJ officials become aware of videos of interrogations?
Mukasey: don't know
Leahy: did they ever view tapes?
Mukasey: don't know. And what was done in dept wouldn't be something I'd disclose if I knew it
Leahy: (confused and annoyed) Perhaps you & I should discuss it in private, with Sen Specter. If they *had* viewed them, then there'd be a reason to ask, who gave the order to destroy them.
Mukasey: order to destroy is separate from whether anyone in DOJ viewed them
Leahy: depends on *when* they viewed them, e.g. was anyone in dept asked about legality of destroying tapes
Mukasey: seen no evidence of someone in DOJ being asked about legality of tape-destruction. In any case, John Durham will be investigating. (stream cut out)...I first knew about it when I opened the paper that day (it reported)
Leahy: (makes joke about marking NYTimes, WaPo "Top Secret")
Mukasey: if I knew before that (article), I forgot.
Leahy: do you have any problems with (Durham??) testifying before this committee?
Mukasey: USAtty have never testified in pending cases--see no case for an exception, here.
Leahy: we may come back to that. You doubtless heard about how the Whitehouse, despite being required by law to archive emails, now say that, over a period of two years, destroyed email.
Mukasey: saw story that said there were emails there, that shouldn't be there (?? backwards)
Leahy: also told they'd used RNC (Republican National Cmte) emails, then said "oops" and destroyed them. If not following archive laws, e.g. Congress had questions about that in the last administration. Isn't this something you could look into?
Mukasey: depends on retention...
Leahy: if certain records were retained, and some destroyed, wouldn't that raise questions in your mind? I would hope the AG would have questions, too.
3:01 PM
Grassley (copy of his statement, questions for Mukasey): former AG recruited outside forensic experts in last admin. One result was that the FBI put people with expertise in position of forensics. Now the FBI is saying that neither Arabic skills, nor expertise needed for counterterrorism---isn't this like not having a forensics scientist in their old crime lab?
(sorry, Grassley's speaking really quickly and the stream cut out again!)
Grassley: What action has your office taken to investigate concerns Oct 11, 2007 letter from Mr. Youssef (whistleblower?)
Mukasey: don't know
Grassley: he wants to know why FBI impeding his counterterrorism efforts. We have someone in FBI saying our efforts being weakened, and we have to wait for courts? While we're under threat of attack every day?
Mukasey: we are (under threat) but FBI reviewing its efforts. I'm actively involved.
Grassley: Youssef also discovered/identified NSLetters. Staff claimed didn't know about letters at time. According to IG, they *did* know about letters as early as 2004. shouldn't have to wait till IG report to know. DOJ promised info about these NSLetters, but only received small batch of heavily redacted letters. It's been about a full year since we asked.
Mukasey: I'll followup. IG report lead to changes in oversight, issuance of letters. These oversights should be given a chance to work. Problem is lack of oversight.
Grassley: in this week's SOTU, the pres spoke of increasing work-site enforcement in terms of immigration. Actively pursuing employers--is this a priority for DOJ?
Mukasey: I do.
Grassley: Sen Bond and I wrote you about a woman FBI agent who pleaded guilty about immigration status--Prouty, overstayed visa, arranged marriage, brother in law was a Hezbollah supporter. FBI ignored all this b/c they thought she was checked out. Will agents who were originally citizens of high-risk countries be subject to increased security checks? etc etc (stream cut out)
3:09 PM
Mukasey: FBI does internal security reviews on an ongoing basis.
Leahy: I know Grassley, you had a great deal of interest in these subjects. Regardless of whether it's a Dem or GOP president.
Sen Whitehouse!!!!!
Sen Whitehouse: want to sort out process question, about whether WBg torture. You said you're not going to engage your advisory capacity, b/c you disclosed that WBg isn't part of CIA's interrogation regime. Under 23 40A, uses torture in Statute, there *are* concrete facts that would justify an analysis--there are arguably, whatever it is, it *is.* Trying to determine if the analysis is taking place, if you are waiting for Durham's investigation to determine what happened, or if there's been a policy determination made, since there's a claim of authority made...or some fourth category?
Mukasey: process for coming to any determination, that facts come into the DOJ that start any investigation. Durham's investigation might spark an investigation of what was on the tapes...
Whitehouse: couldn't we engage in a concrete investigation that would at least give cause to an inquiry?
Mukasey: wouldn't be a concrete discussion
Whitehouse: in a classified setting, it may or may not be an "If"
Mukasey: ummm....(long pause)...not sure what that suggests
Whitehouse: trying to be careful not to step outside boundaries I'm obliged to honour here, not disclosing class'd info. Same time, want more info, b/c not fair to say that nobody has any basis from anywhere---read news, TV, former CIA official on airwaves---if that's not the first red flag to get an investigation going forward, I don't know what *would* be! Just a public view of the matter suggests ....(stream cut out)
skdadl: 3:00 PM
We are listening to the doctrine of the Federalist Society.
Shorter Federalist Society: We follow orders.
Fight, Sheldon. But you're not gonna break through this guy's shell.
kitty again: 3:15 PM
Whitehouse: there's no exemption, no Nuremberg defence built into this 23 40 A statute. Once investigation underway, could determine whether it was necessary or not....but you're telling me that the certification alone tells me that it's not necessary? Not gonna look at this no matter what? Just say so.
Mukasey: not my position. My position is that we're not going to speculate.
Whitehouse: but the investigation is just the destruction of tapes--unless you're telling me that this is the only way we might lead into an investigation of WB'g?
Mukasey: let's not hypothesize. It's a question of telling agents out there that we're investigating CIA based on speculation about whether or not they're breaking the law
Whitehouse: would like to applaud you for re-erection of firewall between DOJ and Whitehouse. WE're at lagerheads about this issue, but I want to applaud you for this particular work (firewall)
Mukasey: this is a good faith exchange
Whitehouse: I also want to be fair
Mukasey: me too
Leahy: Mr AG, the FOIA legislation that we worked on, that was passed, signed into law by Pres, that required the office of gov info services (OGIS, archives, records)...now we see DOJ 2009 budget for administration, there's an attempt to move OGIS into DOJ. The law says keep it in National Archives, as far away from gov.
3:20 PM
Cardin (D-Maryland): (stream cut out) we all acknowledge the horrible process it is...from an int'l perspective, we're tarnished when we try to justify any torture. It's going to be difficult for us to protect American interests when others try these techniques on *our* soldiers. I know you're new to the office, but I believe clarity is needed here. Not asking for further response (today). I'm involved in Helsinki commission on Human Rights. Difficult to explain why admin is hedging on this issue.
Cardin: on FISA, re: retroactive immunity, I'd urge you to consider Specter's comment on potential abuses and whether retroactive immunity could have permanent damage on role of judiciary on protecting civil rights and issues of Americans. Need to preserve role of courts--applaud Specter and Whitehouse for their proposal.
Cardin: re sunset of PAA, b/c predictability of statute. I have an amendment for a sunset, too. If there isn't a sunset, then the level of cooperation between agencies and level of engagement by Congress isn't as much.
Cardin: Need to get, in this hearing, to election issues and civil rights division. We have an election coming up in 2008. If like 2006, then there will be efforts made to suppress minority voting. We agree that should have no place in US politics. (stream cut out)
skdadl: 3:14 PM
Oh, yay. Sheldon is going after the OLC.
kitty again: 3:26 PM
Mukasey: sent memo to all prosecutors, that their sensitivities have to be heightened at time of elections--but also discouraged from temptation of bringing prosecutions too close to elections. Shouldn't be any perception of partisanship. Investigations should only be carried forward if it's ready to go--not based on timing of elections.
Cardin: if office learns of activities that are aimed at suppressing vote, e.g minorities will be arrested if unpaid parking tickets, I just hope it's clear DOJ will prosecute such things.
Mukasey: we've discussed examples that are clearly fraudulent. We'll make every effort and use every resource to make sure that doesn't happen.
Cardin: thank you. Regarding civil rights division: I ask you to give personal attn to this division and return it to historic role as protector of rights of minorities--empower all people to civil liberties.
Mukasey: we observed that division's 50th anniversary. Emblematic of role of DOJ. I met w/nominee to head that division, and met w/unit chiefs of division. It's my belief that they should be encouraged.
Cardin: I look forward to working with you in that regard. Look forward to the confirmation process for Asst. US Atty in that division.
Sen. Whitehouse: put my last question in form of letter, re Office of Legal Counsel, for Dept. Some declassified sections of highly classified opinions make me worry that it's become an ideological hothouse, b/c removed from scrutiny by classification shield. Appreciate Chairman's indulgence.
Leahy: I'm interested in that, too.
Mukasey: the book you refer to re: OLC, says regardless what you think about those opinions, nobody in that unit thought they were violating the law or ever intended....(stream cut out)
3:33 PM
Leahy: two different writers who often had two diff views--one said Durham would report to Dep. AG, who reports to AG, and therefore will not be ...(what???)
Leahy: and then Bruce Fein said if the AG was still entrusted to det whether state secrets still allowed would be like Nixon determining what evidence to give Archibald Cox (investigating Watergate)
Leahy: I read both quotes and thought, why not just give a special counsel like Patrick Fitzgerald in the CIA leak case?
Mukasey: there are rules about when to appt special counsel. Only in a situation of a conflict.
Leahy: there may have been a conflict, but not within your office? The DOJ?
Mukasey: right. Don't want to tell DOJ we don't have faith in you.
Leahy: but that's why I asked why E.District Virginia USAtty recused himself?
Mukasey: (didn't catch response)
skdadl: 3:20 PM
Awwww ... JamesComey
skdadl: 3:24 PM
Good going, Durbin: he is pushing Mukasey on the subject of Bradbury's memos. Comey warned that the department would be ashamed of those memos. Mukasey has lauded Bradbury.
Kitty: did you get the quote about Comey? That was shameless, really shameless. Also not fully literate -- he said Comey's opinions were not "inevitable"? WTF? does that mean?
kitty again: 3:36 PM
Durbin: do you remember former Acting AG James Comey? Opinion?
Mukasey: yes, he appeared before me as a lawyer. I was Chief Judge in his district. I've since had occasion to talk with him and get his counsel on the DOJ in general. He's a sound, able person...
Durbin: you respect him. So let me ask you about a man by the name of Steven Bradbury. *****stream cut out*******
Durbin: ...when Comey was asked about some of Bradbury's (torture) memos, he said the DOJ would be "ashamed" if these memos became public. But you were quoted as giving (glowing praise of Bradbury)
Mukasey: you asked me if I know Comey, but I've also come to know Bradbury, and worked more closely with him since I've been there. To say that Comey has good judgement isn't to say that he's inevitable or that his judgement of one document is a permanent scar on that doc.
Durbin: there's the area of interrogation & torture and warrantless wiretapping--have you reviewed the opinions he wrote on these?
Mukasey: I've reviewed it w/assistance of others and determined that that program is lawful.
Durbin: did you read the opinion of "combined effects" (multiple torture techniques at once)
Mukasey: yes
Durbin: Gonzo approved this opinion over objection of Comey, who said DOJ would be ashamed if it became public
Mukasey: the opinion was dated 2007, so that doesn't make sense
Durbin: I don't think the timing works out either. would you go back and review? And return to us?
Mukasey: ok
Durbin: I asked you to review all of Bradbury's opinions at your confirmation hearing, and I have serious reservations, as he's serving in violation of the vacancies reform act. Do you think he's the effective head as the OLC?
Mukasey: I've dealt with him as the princ person at OLC
Durbin: isn't his presence in that role in violation?
Mukasey: I believe he's been renominated
Durbin: I believe he has been too, but I think his presence in that role is in violation. I will ask you again to read Mr. Bradbury's opinions.
Mukasey: I would think that those opinions would be (irrelevant 'cause old)
Durbin: I don't think that's adequate: to ignore past opinions...
Mukasey: I would say that his opinion was not *his* opinion (???? WTF?????)
3:45 PM
(missed about 40 secs due to stream)
Leahy: we've seen what's happened when decisions made in secret, in memos---erodes liberties and undermines us as a nation of laws. Not enough to say WBg not authorized. Should say, "it's wrong." "It's illegal." I put in a letter from (JAG officers) and I want to quote: "WBg is inhumane, it is torture and it is illegal." They quote sitting JAG, in which these sitting JAGs unanimously and unambiguously agreed it's illegal and in violation of law. I'm afraid when admin won't declare WBg off limits...we've seen it in other regimes, that they cite the US. Danger to Americans around world. Degrades humanrights everywhere. At the World Economic Summit last week, wonder why we can't just say unequivocally that this is wrong. No Senator would have to know the circs or "justification" used to do this to an American abroad. We'd just condemn it. It's unfortunate that our AG can't even say that WB'g an AMERICAN is illegal. Oversight makes America work better. See Senator Grassley--a Republican. One thing you should know: many of us feel there should have been different, better answers. Want the DOJ to be the best of any such dept in the world. We'll disagree but we'll work with you. Mr. AG you're free to say anything you'd like.
3:49 PM
Mukasey: (stream cut out) ...I'm grateful to you (Leahy) and mems of cmtee to work together. Can't ask any more than that.
Leahy: in my 34th yr in Senate, who looks at my earlier career as a prosecutor, a highlight in my life, I *will* work with you to make things better. When this president leaves, we want to leave it in the best possible shape for the *next* president, whoever that is.
*adjourned*
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