Mukasey, Panel Still at Odds Over Torture

Posted January 30, 2008 at 6:42pm

In about the only conciliatory note at his first oversight hearing, Attorney General Michael Mukasey said Wednesday that he would be open to brokering an agreement between the White House and Congress over contempt citations in the U.S. attorneys scandal.

Senate Judiciary ranking member Arlen Specter (R-Pa.) asked Mukasey if he would take a “fresh look” at persuading senior and former aides to President Bush, including Karl Rove, to testify in some fashion before Congress.

“I’d be willing to try and find an accommodation,” Mukasey said, but quickly added that he wasn’t trying to suggest that he would “overturn long-standing rules” regarding executive privilege in the process.

Congress and the White House have been at loggerheads since last March over a request for Rove and ex-White House counsel Harriet Miers to testify about why and how nine U.S. attorneys were fired in 2006. Congress has since subpoenaed their testimony, as well as documents from White House Chief of Staff Joshua Bolten. The scandal resulted in the ouster of then-Attorney General Alberto Gonzales.

Together, the House and Senate Judiciary committees have issued contempt citations for Rove, Miers and Bolten, but the full chambers have hesitated to act.

The minor détente on the contempt issue was the only note of possible cooperation between Democrats and Mukasey on Wednesday at the Senate Judiciary Committee’s first oversight hearing of 2008.

Democrats seemed angry, mystified and increasingly frustrated by Mukasey’s legalistic refusal to categorically denounce waterboarding, a simulated drowning technique that has allegedly been used by CIA agents in interrogating terrorism suspects. But Congress may not have much leverage to force the issue.

“The attorney general of the United States should be able to declare [waterboarding] wrong, illegal. It’s beyond the pale,” Chairman Patrick Leahy (D-Vt.) declared at the close of the all-day hearing.

Democrats could retaliate by holding up the nomination of Mark Filip to be deputy attorney general, which the committee is slated to take up this morning. Filip refused to answer the waterboarding question at his own confirmation hearings in December, citing deference to his potential future boss: Mukasey.

Any Senator on the committee can hold the nomination over for a week. Majority Whip Dick Durbin (D-Ill.), while noting that he supported Filip, who is from Chicago, indicated that it would be slow going for Justice vacancies if Mukasey’s replies were unsatisfactory.

Democrats certainly appeared miffed by the new attorney general’s answers on Wednesday.

Echoing a question posed to Director of National Intelligence Mike McConnell by The New Yorker, Sen. Edward Kennedy (D-Mass.) asked Mukasey whether he would define waterboarding as torture if it were done to him.

“I would feel that it was,” Mukasey answered. But, Mukasey added, that did not mean that was his professional judgment as attorney general. “This is an issue on which people of equal intelligence, equal faith and equal vehemence” can disagree, he said.

In a letter sent to Leahy on Tuesday night, Mukasey stated that he had “conducted a careful and thorough review” of Justice’s legal analysis surrounding interrogation techniques and concluded that the “current” program is legal. Waterboarding is not part of the current program.

Mukasey added that it would not be “responsible” for him to answer the question of whether waterboarding would be legal if it were used under current law.

“I believe it is not an easy question,” Mukasey wrote to Senators. “There are some circumstances where current law would appear clearly to prohibit waterboarding. Other circumstances would present a far closer question.”

At the hearing, Democratic Senators attempted to get Mukasey to define those circumstances in which waterboarding could be considered a legal tactic. Sen. Joseph Biden (D-Del.), fresh from the campaign trail, asked whether waterboarding would be legal if the subject planned to launch a nuclear bomb attack, as opposed to illegal if he was refusing to identify his superiors.

Mukasey replied that the answer was not just “relative” to circumstances, but also should be judged by whether it “shocks the conscience” under the Detainee Treatment Act of 2005, which seemed to confuse Senators.

Taking another tack, Senators pressed Mukasey on whether not just the destruction of CIA tapes depicting waterboarding, but the content of those tapes, would be scrutinized in the department’s recently announced criminal probe of the matter, headed by federal prosecutor John Durham.

Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney who has been highly critical of the Justice Department, asked Mukasey whether there would be a “thorough and independent analysis of whether laws were violated” on the tapes.

“You’re assuming what was on the tapes,” Mukasey replied, deferring all questions about the tapes to Durham.

“It strikes me that there’s a split standard there,” Whitehouse said.

Durbin asked what “reasonable” person would say waterboarding was permissible.

“Do you see the problem with your ambivalence on this issue?” he demanded.

Mukasey replied that he was responding not with ambivalence, but with “due caution.”

Durbin later pressed Mukasey on why he appointed Durham instead of a special counsel to probe the CIA tapes. He answered that he doesn’t want “to tell anybody that every time a [big case] happens they can’t have faith in the Justice Department.”