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At Senate Hearing, Attorney General Michael Mukasey Refuses
to Say if Waterboarding is Torture, Illegal

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Testifying before the Senate Judiciary Committee for the first time since the Senate confirmed his nomination, Attorney General Michael Mukasey refused again to say whether waterboarding is a form of torture or is illegal. Mukasey admitted waterboarding would feel like torture if it was done to him but refused to say whether it would be illegal for a foreign country to waterboard a US citizen. During the hearing, Mukasey repeatedly came under harsh questioning from both Democrats and Republicans. [includes rush transcript]

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

AMY GOODMAN: Attorney General Michael Mukasey has refused again to say whether waterboarding is torture or illegal. On Wednesday, Mukasey testified before the Senate Judiciary Committee for the first time since the Democrat-led Senate confirmed his confirmation to be Attorney General.

Mukasey admitted waterboarding would feel like torture if it was done to him, but refused to say whether it would be illegal for a foreign country to waterboard a US citizen. He told Senator Joseph Biden the cruelty of torture must be balanced “against the information you might get.”

During the hearing, Mukasey repeatedly came under harsh questioning from Democrats and Republicans. Senate Judiciary Chair Patrick Leahy opened his questioning by citing National Intelligence Director Mike McConnell and former Homeland Security Secretary Tom Ridge, who both recently acknowledged waterboarding can be described as torture.

    SEN. PATRICK LEAHY: Do you agree with them — and with me, for that matter — that waterboarding an American citizen anywhere in the world is torture and illegal — waterboarding an American citizen anywhere in the world is illegal and torture?

    MICHAEL MUKASEY: Senator, without going into detail about what they said, I understood what they said to express their personal points of view. The one thing that separates me from them is that I’m the Attorney General, and they’re not, that when I pronounce on the reach of general legal principles, that is taken as a statement of how far those principles —

    SEN. PATRICK LEAHY: So you disagree with them?

    MICHAEL MUKASEY: They expressed their personal view.

    SEN. PATRICK LEAHY: Well, Secretary Ridge was expressing the view he had when he was head of Homeland Security. He considered waterboarding an American to be torture. You’re not willing to state that as equivocally — as unequivocally as he did for the reasons you state, is that correct?

    MICHAEL MUKASEY: I don’t know what underlay his logic, and I don’t know that it was described in his statement. I know what my function is and what my office is now. And I know that if I address a difficult legal question without actually having concrete [inaudible] circumstances before me, two things can result. One is that people who are hostile to us can look to that as an authoritative statement of what —


    MICHAEL MUKASEY: — how this country applies its laws and how it will continue to apply its laws.

    SEN. PATRICK LEAHY: You know, it’s interesting. You have Ridge saying it would be torture, McConnell saying it would be torture. And we have our State Department equivocating on what they would say if an American was picked up abroad and subjected to this or if any of our military were picked up and subjected to this. I think the failure to say something probably puts some of our people in more danger than not. But I understand your answer, and I am sure you understand my disagreement with it.

    I know you’re looking into these tapes, these CIA tapes of waterboarding that were destroyed. Are you looking into the question of the destruction, or are you looking into the question of the conduct that was shown on the tapes?

    MICHAEL MUKASEY: Actually, I’m not looking into it. I appointed an experienced prosecutor to act —

    SEN. PATRICK LEAHY: Well, it’s the Justice — by “you,” I mean the Justice Department has opened a formal investigation into whether destroying those tapes was a crime. Is that — is that investigator from a US attorney’s office, is he also going to look into the fact that what was on it, whether that was a crime or not?

    MICHAEL MUKASEY: That investigation is going to go step by step, fact by witness — witness by witness, the same way that any other investigation goes. If it leads to showing motive, then it leads to showing motive. And I’m sure that will be explored, if it has to be. But the person who controls that is the prosecutor, who is very able and who has able assistants and an experienced FBI agent who’s providing the investigative.

    SEN. PATRICK LEAHY: We’ll be talking with him.

AMY GOODMAN: Senate Judiciary Chair Patrick Leahy questioning Attorney General Michael Mukasey at an oversight hearing yesterday. Later in the hearing, Massachusetts Senator Ted Kennedy grilled Mukasey on the issue of waterboarding.

    SEN. EDWARD KENNEDY: So I won’t even bother to ask you whether waterboarding counts as torture under our laws, because I know from your letter that we won’t get a straight answer. So let me ask you this: would waterboarding be torture if it was done to you?

    MICHAEL MUKASEY: I would feel that it was.

    There are numerous — I remember studying Latin in school, and one of the people I studied was Cicero. And Cicero used to — when he made speeches, would list all the things he was going to pass over without mentioning, and then he would pass over without mentioning them, and a lot of that is in your question. You say, “I’m going to pass by this and not ask you about it and pass by that, not ask about it.”

    There are numerous things that I would differ with. You say that waterboarding is obviously torture. And you use the example of taking something — bank robbery, obviously, being stealing. That assumes, of course, the answer to the question, which is that waterboarding is, in fact, torture, just the same way that bank robbery is, in fact, stealing. I think there are numerous other things that I would argue with.

    I simply point out that this is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed and have differed within this chamber. During the debate on the Military Commissions Act, when some people thought that it was unnecessary, some people thought that it obviously barred waterboarding, other people thought that it was so broadly worded that it would allow anything, and there were expressions on both sides.

    I should not go into, because of the office that I have, the detailed way in which the department would apply general language to a particular situation, notably when I’m presented only with a question that tells me only part of what I would be asked to rule on, if I were ever asked to rule on it.

    SEN. EDWARD KENNEDY: Well, let me — let me — as you know, the Director of National Intelligence, Admiral McConnell, stated, “If I had water draining in my nose, oh, God, I just can’t imagine how painful. Whether it’s torture by anybody else’s definition, for me, waterboarding would be torture.” Now, let me — you say facts and circumstances. Let me ask you, under what facts and circumstances exactly would it be lawful to waterboard a prisoner?

    MICHAEL MUKASEY: For me to answer that question would be for me to do precisely what I said I shouldn’t do, because I would be, number one, imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those — in those eventualities. Those eventualities may never occur. I would also be telling people in the field, when I’m not faced with a particular situation, what they have to refrain from or not refrain from in a situation that is not performing and in situations that they may find analogous. I shouldn’t do either one of those.

    SEN. EDWARD KENNEDY: Well, let me ask then, finally, are there any interrogation techniques that you would find to be illegal, fundamentally illegal?

    MICHAEL MUKASEY: There are statutes that describe specifically what we may not do. We may not maim, we may not rape. There is a whole list of specifically barred techniques.

    SEN. EDWARD KENNEDY: But waterboarding isn’t on that list.

    MICHAEL MUKASEY: It’s not.

AMY GOODMAN: Massachusetts Senator Ted Kennedy questioning Attorney General Michael Mukasey. Illinois Senator Dick Durbin also took up the issue of waterboarding with Mukasey.

    SEN. DICK DURBIN: Mr. Attorney General, this body, in this chamber, if you refer to the Senate —

    MICHAEL MUKASEY: I’m referring to the Senate.

    SEN. DICK DURBIN: — has voted clearly, on a bipartisan and overwhelming vote, that we would prohibit such practices, with the McCain amendment. So if you’re going to rely on the chamber, the chamber has expressed its will in exactly the opposite position you’ve taken.

    MICHAEL MUKASEY: And the chamber, on another occasion, declined, voted down a bill that would forbid waterboarding. And there were people, in the course of the debate on the measure that you mentioned, who said that the language was so general that it would open things up to all sorts of behavior that they considered objectionable and cruel, which I would think would include waterboarding, because they are people who say that.

    SEN. DICK DURBIN: If the Detainee Treatment Act, I think, is clear, in terms of the law of the land and the expression of this chamber, and even went so far as to offer amnesty, immunity, to employees of the government who have been engaged in it, you still think that the jury’s out on whether the Senate believes that waterboarding is torture?

    MICHAEL MUKASEY: The question is not whether the Senate is out on this or that technique. The question is whether the Senate has spoken clearly enough in the legislation that it has passed and that the Congress at large has passed and that the President has signed, which is all anybody’s really got to work with.

    SEN. DICK DURBIN: So where is the lack of clarity in the McCain legislation?

    MICHAEL MUKASEY: The words of the legislation, of all the legislation that’s thus far been passed, are words that are general and upon which, as I said, people on both sides of the debate have already disagreed. To point to this language or that language, it seems to me, is to pick — is to pick nits at this point. People have disagreed about the generality of the language and have said that it can be read two ways.

    SEN. DICK DURBIN: I might just say that, as the chairman has noted here as a matter of record, Senators McCain, Warner and Graham, the lead sponsors of this legislation, have said that under the Military Commission Act, waterboarding is a war crime. It is unequivocal.

    How do you — at this moment in time, you have employees of your department in Iraq counseling the police and army there not to use waterboarding and torture. And their standard, unfortunately, at least leading up to this moment, has been that it depends on the circumstances. Do you see the problem with your ambivalence on this issue, when it comes to setting a standard that we are trying to teach to the world, a standard we want our own people to be protected by?

    MICHAEL MUKASEY: The standards — the problems posed by what you call ambivalence, which I don’t think is really ambivalence, but rather a due caution for the reasons that I outlined, are already matters of record.

    SEN. DICK DURBIN: So, for clarity, then, I assumed that — and correct me, please — that you were arguing that the use of such techniques to discover nuclear weapons would not shock the conscience.

    MICHAEL MUKASEY: No. What I was saying was that the use of such techniques to discover information that could not be used to save lives and was simply of historical value would shock the conscience.

    SEN. DICK DURBIN: Well, that’s half the answer. So let’s go to the other half. What about the circumstances where the information would save lives, many lives?

    MICHAEL MUKASEY: Those circumstances —

    SEN. DICK DURBIN: Would that justify it?

    MICHAEL MUKASEY: Those circumstances have not been set out. That is not part of the program. We don’t know concretely what they are. And we don’t know how that would work.

    SEN. DICK DURBIN: Under the military standards, clearly — military interrogation standards, they are not interested in the danger. They have just said, unequivocally, that their personnel cannot engage in this technique. So you’re saying that when it comes to the nonmilitary, that is still unresolved, as to whether they can use these techniques?

    MICHAEL MUKASEY: It is unresolved.

    SEN. DICK DURBIN: In your mind?

    MICHAEL MUKASEY: Because I have not yet been presented with a concrete situation. And I would —

    SEN. DICK DURBIN: I’ve gone over my time, and I apologize, Mr. Chairman. Thank you, Mr. Attorney General.

AMY GOODMAN: Illinois Senator Dick Durbin questioning Michael Mukasey about waterboarding. He continued throughout the hearing to refuse to say that waterboarding is torture or illegal.

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