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Attorney General Nominee Michael Mukasey Defends Bush Admin on Post-9/11 Measures, But Vows Independence

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The Democratic-led Senate Judiciary Committee appears set to back attorney general nominee Michael Mukasey, following his first day of confirmation hearings. On Wednesday, Mukasey defended many of President Bush’s most controversial post-9/11 policies, including holding prisoners without charge and denying them habeas corpus. We get reaction from Michael Ratner, president of the Center for Constitutional Rights. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Confirmation hearings began Wednesday for attorney general nominee Michael Mukasey, and after a day of questioning, the Democratic-led Senate Judiciary Committee appears set to support his confirmation.

President Bush nominated Mukasey to replace Alberto Gonzales after Gonzales quit in August amidst a series of scandals involving the firing of U.S. attorneys and for approving a secret warrantless domestic surveillance program.

Mukasey is a retired federal judge who handled several high-profile cases, including the 1995 trial of Sheikh Omar Abdel-Rahman, the “Blind Sheikh,” and the initial detention of Jose Padilla.

On Wednesday, Mukasey defended many of President Bush’s most controversial post-9/11 policies. He said the president has the right to indefinitely detain American citizens without charge. He refused to recommend the closing of the military prison at Guantánamo, and Mukasey said he doesn’t believe prisoners at Guantánamo should be allowed the right of habeas corpus.

Meanwhile, Mukasey was harshly critical of the 2002 Justice Department memo on torture, which he described as “worse than a sin.” Mukasey promised to maintain independence from President Bush’s White House. He told Senator Arlen Specter he would resign if he couldn’t dissuade the president from taking action that he determined to be illegal.

In a moment, we’ll be joined by Michael Ratner, president of the Center for Constitutional Rights. But first we turn to the confirmation hearings. This is Democratic Senator Dianne Feinstein questioning Michael Mukasey.

SEN. DIANNE FEINSTEIN: I’d like to ask a question about executive power, and in Padilla v. Bush, you upheld the president’s power to detain Jose Padilla indefinitely, even though he was a United States citizen seized on United States soil without being charged with any crime. Under an existing statute, no American citizen could be detained “except pursuant to an act of Congress.”

You ruled that the Authorization for the Use of Military Force was an act of Congress and was written broadly enough to authorize Padilla’s detention. The 2nd Circuit disagreed, saying that the AUMF did not authorize the president to detain American citizens like Padilla who were seized in the United States. The Supreme Court did not reach the issue, and it remains unresolved.

As attorney general, will you advise the president that the AUMF authorizes him to seize United States citizens on U.S. soil and detain them indefinitely without charge?

MICHAEL MUKASEY: I think that the authority of the president to seize U.S. citizens and detain them without charge, leaving aside for a moment where that happens, was in fact sustained in Hamdi. The court in Hamdi did rule that the president had authority to, among other things, seize and detain American citizens captured on the field of battle. Of course, that person was captured in, I believe, in Afghanistan.

SEN. DIANNE FEINSTEIN: I’m talking about the United States.

MICHAEL MUKASEY: Hamdi left open the question of where the battlefield is and who defines the battlefield. And I certainly can’t say that, as of now, there is clear authority authorizing what I thought there was authority to authorize in Padilla.

SEN. DIANNE FEINSTEIN: Thank you very much. Appreciate that. Also, in your Padilla opinion, you claim that under Civil War-era prize cases, the president has inherent authority to respond to aggressive acts by third parties and that “courts may not review the level of force selected.” First question is, how long does this is unlimited power last?

MICHAEL MUKASEY: I think the short answer to that is that it lasts as long as it has to last, until the other political bodies involved in the matter can take the matter up and deal with it.

AMY GOODMAN: Attorney general nominee Michael Mukasey being questioned by Democratic Senator Dianne Feinstein at Wednesday’s Senate Judiciary Committee hearing.

The future of the U.S. military prison at Guantánamo was also repeatedly brought up during the hearing. This is a question from Democratic Senator Herb Kohl of Wisconsin, followed by questions from Republican Lindsey Graham of South Carolina and Democrat Dick Durbin of Illinois. Senator Herb Kohl.

SEN. HERB KOHL: Are you prepared to recommend to the president that we close Guantánamo?

MICHAEL MUKASEY: I’m prepared to recommend to the president that we take the responsible course in dealing with the people at Guantánamo. I can’t simply say we have to close Guantánamo, because obviously the question then arises of what we do with the people who are there. And there is now no easy solution to that.

SEN. LINDSEY GRAHAM: Would you advise the president of the United States to allow unlawful enemy combatants to have habeas rights, to grant them habeas corpus rights at Guantánamo Bay?

MICHAEL MUKASEY: I would not advise the president to grant rights beyond those that they already have.

SEN. DICK DURBIN: I also asked you about Guantánamo. You referred to it — a colorful phrase — you referred to it as a “fright wig” used by critics of the administration and defended Guantánamo on the grounds that detainees receive “three hots and a cot, healthcare better than many Americans and taxpayer-funded Korans.” That’s what you said when we met. What I heard in response to your questions from Senator Kohl is that that may not accurately characterize your feelings about Guantánamo.

MICHAEL MUKASEY: My feelings about Guantánamo as a place, which I have not visited — I admit I have not visited it, but I have spoken to people who have — is — my feeling is pretty much what I told you in a rather pungent conversational way. I don’t think people are mistreated there. That is not to say that the problem of indefinite detention of a large number of people has not become a problem for us. It is a problem for us. It’s an ongoing problem, and we’ve got to get our hands around it and resolve it. And it’s due, as I indicated before, in large measure to the fact that getting ownership of that problem is a difficult thing in government. I recognize that.

SEN. DICK DURBIN: I suppose mistreatment is a matter of interpretation. If one is speaking of torture of the Guantánamo detainees, that is one category of mistreatment, for sure. Detention without due process may be another category, mistreatment that Senator Specter has addressed, along with Senator Leahy, on the issue of habeas corpus. Would you concede that holding these detainees without charges for years and then, in many cases, releasing them without charges is a form of mistreatment?

MICHAEL MUKASEY: What one regards conversationally as mistreatment or not, I think, is probably in the eye of the beholder. Under Hamdi, it is lawful. Hamdi said, as far as I know, unequivocally, that it is lawful for the president to detain people, even Americans, captured on a field of battle, indefinitely.

AMY GOODMAN: Attorney general nominee Michael Mukasey responding to questions from Senators Dick Durbin, Lindsey Graham and Herb Kohl.

To talk more about the Mukasey nomination, attorney Michael Ratner joins us. He’s president of the Center for Constitutional Rights here in New York City. Welcome to Democracy Now!, Michael.

MICHAEL RATNER: Nice to see you, Amy.

AMY GOODMAN: Your response?

MICHAEL RATNER: Well, my response is, I mean, I think we all know who Mukasey is. Mukasey is someone who basically isn’t willing to take on the torture program, Guantánamo, electronic surveillance, enemy combatants, all these issues that have been the core of the U.S. going off the page of fundamental rights. He is sadly off the page with the administration.

And the real question, to me, of this whole charade, which is what I have to call that hearing, is the fact that the Democrats are willing to confirm him and basically lay down and let issues like enemy combatants, torture, electronic surveillance, simply be continued by the next attorney general. So it’s really — when I watched the hearings yesterday, to me it was one of the saddest days I’ve seen in that Congress. And the only thing I could think of was the sign that Dante wanted in front of the gates of Hell, which is “Abandon all hope, ye who enter here.”

We can go through each of these issues, but, for example, on torture, they’re lauding Mukasey, these Democrats, because he says he won’t torture people, he doesn’t believe in torture. Well, you have to ask yourself: What’s the difference between what he’s saying and President Bush is saying? Every government that engages in torture says, “We don’t torture.” The question is, how do you define “torture”? And on those issues, on those issues, they did not take him on. They didn’t ask him, “Is waterboarding torture? Is it used in combination with temperature control, with stripping, with hooding? Is that torture?” No one asked him that.

AMY GOODMAN: Well, let’s go back to a clip of the confirmation hearing on the issue of torture. This is Senate Judiciary Committee Chair Patrick Leahy of Vermont.

SEN. PATRICK LEAHY: I think one of the greatest stains on the history of this country is the memo dated August 1, 2002, signed by then-Assistant Attorney General Jay Bybee. It concluded that the president has authority as commander-in-chief to override domestic and international laws prohibiting torture, to immunize anybody who commits torture, immunize them from prosecution. And many of us voted against Alberto Gonzales’s nomination for attorney general because he refused to disavow legal conclusions in a memo that did not rule out the use of cruel, inhuman, degrading treatment of detainees during interrogations.

It turns out that our concerns are well founded. The New York Times recently reported that soon after Attorney General Gonzales took over, the Department of Justice secretly endorsed combinations of the harshest interrogation tactics as legal, even though they had been publicly withdrawn under the so-called Bybee memo.

Now, do you believe — so we know where you might stand on this — do you believe that the president has the authority, under any circumstances, to exercise a so-called commander-in-chief override and immunize acts of torture, as the Bybee memo argued?

MICHAEL MUKASEY: We are parties to a treaty that outlaws torture. Torture is unlawful under the laws of this country. The president has said that in an executive order. But beyond all of those legal restrictions, we don’t torture, not simply because it’s against this or that law or against this or that treaty. It is not what this country is about. It is not what this country stands for. It’s antithetical to everything this country stands for. Soldiers of this country liberated concentration camps toward the end of World War II and at the end of World War II and photographed what they saw there as a record of what the barbarism that we oppose. We didn’t do that so that we could then duplicate it ourselves.

The Bybee memo, to paraphrase a French diplomat, was worse than a sin. It was a mistake. It was unnecessary. It, as I’ve read — and I’ve read the memo, and I’ve read what’s been — some of what’s been written about it — it purported to justify measures based on broad grants of authority that were unnecessary. The analysis in that memo was found to be defective, and the memo was withdrawn, in favor of a later memo that narrowed substantially the basis for authorizing measures beyond, perhaps different from, those that may be contained in the Army Field Manual.

SEN. PATRICK LEAHY: Would you — would it be a safe characterization of what you’ve just said that you repudiate this memo as not only being contrary to law, but also contrary to the values America stands for?


SEN. PATRICK LEAHY: And does — is there such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violate the law?

MICHAEL MUKASEY: Not that I’m aware of.

AMY GOODMAN: That was Michael Mukasey responding to Senate Judiciary Chair Patrick Leahy of Vermont. Michael Ratner?

MICHAEL RATNER: Well, I think it’s important for people to understand what Mukasey is saying here. He’s saying basically that I don’t agree with the memo to the extent it says the president, as commander-in-chief, can do whatever he wants to human beings. He is not saying that the part of the memo that defines torture as organ failure in the definitions of torture also is illegal or unconstitutional. So he’s giving them something with one hand, but on the other hand he’s not saying that the actual techniques used, which are waterboarding and the like, or this issue that needs to be — to be torture needs to be organ failure — he’s not saying those are illegal. So the next question that Leahy should have said: well, what do think of waterboarding? What do you think of chaining to the floor? What do you think of stripping?

AMY GOODMAN: And what would the role of the attorney general be on these issues, if Mukasey does become the attorney general?

MICHAEL RATNER: You know, every single legal memo, basically, that justified torture, Guantánamo, renditions, every single legal memo comes out of the attorney general’s office. His role would be to take and basically destroy those memos, issue new memos putting us back on the page of law. But no one — no one in that hearing — is insisting on that.

In fact, when he was actually pushed on a little bit about torture by one of the senators, he said, “What you characterize as torture, I do not know of such a policy.” Think about that. Every American who’s thinking, who reads the newspapers, knows that this is a country of torture right now. And these memos came out in 2005, after Congress supposedly banned cruel, inhuman and degrading treatment. They write memos saying you can still waterboard and use these various techniques in combination. The question is, is he an ostrich? Where is this guy living? And so, what we’re getting here is we’re getting someone who’s on the same page as this administration on most of the issues we should be concerned about.

AMY GOODMAN: Let’s go back to the hearing. The Vermont — the chair of the Senate Judiciary Committee, Patrick Leahy, asking Mukasey about the Bush administration’s warrantless domestic surveillance program.

SEN. PATRICK LEAHY: Attorney General Gonzales apparently believed the president has a commander-in-chief override for many of the laws of this country, which contributed to the violations of Foreign Intelligence Surveillance Act, so-called FISA — the signing statement reservation and others, that for five years the administration conducted a program of warrantless surveillance that violated the provisions of FISA.

They didn’t come to us and ask us for changes, even though this Congress has almost unanimously updated and changed FISA, more than 30 times since it was first enacted, to take into consideration changes in technology and needs. Only after somebody in the administration leaked to the press that this was going on and the resultant public criticism and telecommunication companies that had cooperated were sued did they come back and say maybe we ought to look at a new law.

Do you believe that the president has authority to override something that is in law, legal requirements, and immunize illegal surveillance on Americans?

MICHAEL MUKASEY: President can’t immunize illegality. That’s a contradiction in terms. But, that said, I think there’s a long complex history to the FISA statute, beginning with its passage in 1978, when the then-attorney general, Jimmy Carter’s attorney general, Griffin Bell, took the view and expressed the view that the limits of FISA did not reach to the limits of presidential authority, which is to say that there was some gap between where FISA left off and where the Constitution permitted the president to act.

AMY GOODMAN: Michael Mukasey, responding to questions from the Senate Judiciary Chair Patrick Leahy. Your thoughts on this issue?

MICHAEL RATNER: Just look at what this guy is saying. They’re asking him about the warrantless wiretapping program that clearly violated constitutional law, and he actually says, well, there may be a gap between the law and presidential authority that allows the president to do this warrantless surveillance. So he’s essentially saying this is OK.

At another point in the hearing, he said — when they talked about the electronic warrantless surveillance program, he says, quote, “I’m not familiar with that program.” How could someone living in today’s America be not familiar with the warrantless wiretapping program? So what you’re talking about here is somebody who is basically going to go along with this administration, give it a little better face than Gonzales, but is essentially — is essentially one of them.

AMY GOODMAN: Now, the top news, Democratic and Republican leaders reaching an agreement over a deal with the Bush administration over electronic surveillance that would grant retroactive immunity to the telecommunications companies that gave information over to allow the surveillance of U.S. citizens.

MICHAEL RATNER: Yeah, I mean, look where we are, Amy. The Military Commission Act in October 2006 granted retroactive immunity on the issues of torture, and so now they’re making a deal to grant retroactive immunity to the telecommunications companies, because they cooperated illegally — almost for sure illegally — with the government in electronically surveilling us without warrants.

AMY GOODMAN: So, where are the Democrats?

MICHAEL RATNER: Where are the Democrats? Right now, they’re in a very, very bad place, in my view. They’re not a group that we can depend on to protect fundamental rights, whether they’re to do with torture, electronic surveillance, enemy combatants, and certainly not to close Guantánamo at this point. I mean, his answer on Guantánamo — this is six years of Guantánamo, never had anybody with a charge, and he says this is a difficult issue, what are we going to do with the people. Well, the answer is, if you have charges against people, you can try them in a regular criminal court. If you don’t, they have to be released. And whose responsibility is that? That’s our responsibility in the United States, and we ought to take those people into the United States.

Now, Mukasey — what’s amazing is you have three bodies of knowledge to look at. He’s written op-eds in The Wall Street Journal. Those say, first of all, that he wants terrorist courts, special courts to try terrorists. This is the guy the Democrats are going to confirm. He attacked the National Library Association for going after the PATRIOT Act. This is the guy they want to confirm. Then he’s a trial judge right here in the Southern District of New York. And what does he do? He upholds Jose Padilla’s enemy combatant status, upholds material warrants. And in one of the most chilling — really, one of the most chilling things that reminds me of every dictatorship in the world, the lawyer representing Padilla — or, no, not Padilla — brings this Palestinian, Awadalla, in from the court — it’s on a material witness warrant, it’s a secret hearing — and the lawyer says, “My client has been beaten.” The client is in a jumpsuit, orange jumpsuit. What does Mukasey say from the bench? “He looks fine to me.” This is after an allegation of beating. This is the man that these Democrats want to put in as attorney general. No excuse for it.

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