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Mukasey Weighs Waterboarding, Sept. 11 Charges

February 11, 2008 at 6:10 PM EDT
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After Attorney General Michael Mukasey took charge of the Justice Department, he called for an evaluation of the legalities of the "waterboarding" interrogation tactic. In an interview, Mukasey considers the waterboarding debate, charges against Sept. 11 suspects and the strength of the Justice Department.

JIM LEHRER: And to our Newsmaker Interview with Attorney General Michael Mukasey. I spoke with him earlier this evening.

Mr. Attorney General, welcome.

MICHAEL MUKASEY, U.S. Attorney General: Thanks, Jim, for having me.

JIM LEHRER: First, on the Guantanamo Bay charges that were announced today, do you and your Justice Department have anything at all to do with that?

MICHAEL MUKASEY: Well, yes, we’re prosecuting this jointly with the Department of Defense. We have lawyers from the department down there working with them, have been working with them for some time, and this is a joint operation that’s between the Department of Defense and the Department of Justice.

JIM LEHRER: Are you satisfied with the process, the legal process that’s gotten to this point?

MICHAEL MUKASEY: The legal process that’s gotten to this point is the process that Congress put in place with the Military Commissions Act of 2006. And this is the first set of charges being brought under that process. But we’ve tried to adhere as closely to what we think that statute requires as we can.

JIM LEHRER: Any question in your mind that these six men are going to get a fair trial under the definition of U.S. legal jurisprudence?

MICHAEL MUKASEY: The Military Commissions Act prescribes precisely the kind of trial they should get. They’re going to get a trial before a duly constituted military commission that’s going to make decisions under the statute. And that’s the procedure that Congress has put in place.

JIM LEHRER: And does that procedure provide for an appeal process after the trials themselves that goes all the way through the U.S. judiciary, if necessary?


JIM LEHRER: Could it go all the way to the Supreme Court when it’s…

MICHAEL MUKASEY: Theoretically, it could.

JIM LEHRER: Theoretically, it could. And you all will be involved and you will be monitoring this all the way through?

MICHAEL MUKASEY: We will be involved and prosecuting it all the way through.

JIM LEHRER: Now, these are Justice Department lawyers who will be doing the prosecuting?

MICHAEL MUKASEY: Yes, along with Department of Defense lawyers.

JIM LEHRER: Now, at least one of these six defendants has been subjected to a technique, an interrogation technique called waterboarding, is that correct?

MICHAEL MUKASEY: Well, the director of the CIA, I believe, said that three people were waterboarded. He named one of the people who’s named in the statement of charges; that’s Khalid Sheikh Mohammed. So the short answer to your question is yes.

JIM LEHRER: Is that likely to be a part of this trial?

MICHAEL MUKASEY: What evidence gets presented at this trial is up to the prosecutors. And the judges who handle the case will review any evidence that’s proffered for its reliability. That’s the standard that they’re going to use.

JIM LEHRER: And the rules of evidence that would be used in a normal criminal trial will be used in this trial, as well?

MICHAEL MUKASEY: The rules of evidence will be the rules of evidence that pertain to military commissions. And those are separate from the fellow rules of evidence that obtain in the kinds of cases that I tried when I was a judge back in New York.

JIM LEHRER: Is it possible to characterize the differences in words that we could understand, non-legal folks could understand?

MICHAEL MUKASEY: A little bit difficult. I think that the evidence is reviewed for its reliability. That is the touchstone. And more or less weight is given to the evidence based on that assessment.

Because there’s no jury — it’s tried by a panel of judges — there’s less in the way of the kinds of exclusionary rules that apply under the federal rules of evidence.

JIM LEHRER: But rules like, say, of hearsay and all of that, those apply to these, as well?

MICHAEL MUKASEY: I believe that reliable hearsay can be received in a military commission.

JIM LEHRER: Which cannot in a regular trial, right?

MICHAEL MUKASEY: It may or may not. There are exceptions to the hearsay rule, but the touchstone here is reliability. So it may be possible that some evidence that might be excluded in a criminal trial might be admitted here.

Waterboarding legality still fuzzy

Michael Mukasey
Attorney General
I think that it is not surprising that people are concerned about any set of techniques that are beyond the norm that are coercive. It's normal for people to be concerned about what their government does.

JIM LEHRER: Now, the waterboarding issue, it has become a big area of controversy, as you know. You've been right in the middle of it. But let's go through this so we can make sure that I understand and everybody understands what this is all about.

The director of the CIA said last week, Michael Hayden, said that -- well, I'll read you what he said. "It's not a technique that I've asked for. It is not included in the current program. And, in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute."

Is that your position, as well, Mr. Attorney General?

MICHAEL MUKASEY: My position is that I haven't been asked to make any ruling on the legality or illegality of waterboarding.

What I indicated to Congress in my hearing was that, because waterboarding is out of the CIA program now, in order for it to be re-introduced, that would have to be done at the request of the director of the CIA who, together with the director of national intelligence, would have to come to me with a program, a description of the circumstances, of the limits, of the safeguards.

And that would have to be evaluated not only against the laws that obtained back at the time that it was done, but against all the new statutes that have been passed. And there have been new statutes passed by Congress since the last time this was done, which, according to the director of the CIA, was 2003.

We've since had the Military Commissions Act, the Detainee Treatment Act, and an executive order that was authorized by Congress that set out what would be violations of what's called Common Article 3. All of those are overlaid over the prior law.

And if the technique were to be re-introduced, the circumstances of it being re-introduced, as well as its legality under all of those statutes, would have to be re-evaluated from the ground up.

JIM LEHRER: But as we sit here now, you agree with Director Hayden that it is not -- right now, it is not legal under current statute?

MICHAEL MUKASEY: Right now, it's not legal, simply because it's not part of the program. And in order for it to become part of the program, its legality would have to be passed on.

JIM LEHRER: And would you be the person who would pass on it?

MICHAEL MUKASEY: I would eventually be the person to pass on it, along with all the people who work with me at the Justice Department, if it comes up during my tenure.

JIM LEHRER: But in order for anybody to be waterboarded now, there would have to be a specific request that would go to the Justice Department for a legal ruling before it could be used, and then you all would examine it, you would hear people out who wanted to -- who proposed it, and then you would decide, "You can do it because it's legal," "You can't do it because it's illegal"?

MICHAEL MUKASEY: Pretty much correct. We would have to look at the facts and circumstances that they set out, including limits and safeguards, and then we would pass our conclusion to the president.

JIM LEHRER: But would that be your decision alone or would it eventually be the decision of the president?

MICHAEL MUKASEY: As to the legality, it would be my decision alone.

JIM LEHRER: So if the president or one of his agents or an official of the government -- like, say, the director of the CIA -- came to you and said, "We want to do some waterboarding," and the president has OK'd it, then it would go to you to decide whether or not it was legal before it could be done?

MICHAEL MUKASEY: My understanding is that's not the order in which it would happen. I think it would come to me before it came to the president, rather than after.

JIM LEHRER: Is this a -- this has gotten a lot of attention, Mr. Attorney General. Does it deserve it?

MICHAEL MUKASEY: That's really up to the American people, and it's not up to me. It's gotten attention because people have expressed concern. And I talked to the people who've expressed concern.

JIM LEHRER: Do you share the concern?

MICHAEL MUKASEY: I think that it is not surprising that people are concerned about any set of techniques that are beyond the norm that are coercive. It's normal for people to be concerned about what their government does.

I said during my oversight hearings that when you talk about a program like the one that the CIA administers, whether the current program or the past one, you're talking about a choice among unpleasant choices.

These are not pleasant choices; these are the choice among bad alternatives. And it's perfectly normal and proper for people to be concerned that their government is choosing among bad alternatives.

JIM LEHRER: The bad alternatives, the conventional wisdom, as we speak, in the political world is we have a potential Republican nominee, John McCain, and two Democratic potential nominees for the president, Barack Obama and Hillary Clinton, all three say they would more or less have said directly that there will never be any waterboarding technique while they are president. Is that something you would be comfortable with as a presidential edict?

MICHAEL MUKASEY: That is up to political people. I'm not a political person. That's their choice.

JIM LEHRER: But it is a political decision to make that kind of...

MICHAEL MUKASEY: Well, it's a political decision after the legality is passed on, yes.

JIM LEHRER: In other words, a president, no matter who it is, could decide that we're going to use waterboarding as a technique, because of -- you're saying no. You're shaking your head no.

MICHAEL MUKASEY: Right, because it would have to go through the steps that I outlined, including a determination as to whether it was lawful. If a determination were made that what was proposed was lawful, then as a policy matter the president, along with his intelligence people, would determine whether that technique was warranted in the gathering of intelligence.

Waterboarding inquiry a bad idea

Michael Mukasey
Attorney General
[W]hat the government does in compliance with the law is important in all respects. It's not a question of doing something in the name of the American people, which suggests that somehow this is being done for vindictive reasons.

JIM LEHRER: Now, the use of this technique before, you were asked this week or last week that whether or not you were going to investigate the use of waterboarding and whether or not it was a criminal -- as a criminal investigation. You said no. Why?

MICHAEL MUKASEY: Because the use before, to the extent it was part of the CIA program, was something that was authorized by an opinion of the Justice Department, and no one who acted in reliance on an opinion of the Justice Department should then be subjected to an investigation or a prosecution based on having so relied.

If we do that, then what we're saying, essentially, is that nobody can rely on an opinion of the Justice Department for any longer than the tenure of the person who gives it, and maybe for not even that long, only until the political winds change.

And that is something that I think is not appropriate, something I won't do.

JIM LEHRER: So that ends it, right? I mean, you have the power to make that decision? There will be no criminal investigation and that's that?


JIM LEHRER: And you have the same kind of power that if, to move ahead where we were a moment ago, somebody comes up with a proposal to use it again, you have the power to say, "No, that's not legal," and it will not be done?

MICHAEL MUKASEY: Yes, under the laws. This is not a question of my power or my whim.

This is my investigation of what the law requires, with the assistance of a lot of very talented people at the Justice Department and very dedicated people at the Justice Department who work with me. And, again, it would be an assessment under current law, which has changed substantially since the prior law.

JIM LEHRER: And as you say, this is important because what we do in the name of the American people is important, right? In other words, what the government does in the name of the American people in terms of interrogation techniques speaks for all of us?

MICHAEL MUKASEY: What the government does is important in all respect. What the government does to gather intelligence is important in all respects. And what the government does in compliance with the law is important in all respects.

It's not a question of doing something in the name of the American people, which suggests that somehow this is being done for vindictive reasons or anything of the sort.


MICHAEL MUKASEY: This was being done to gather intelligence, but that's my only caveat on what you just said.

JIM LEHRER: Well, my terminology -- what I was suggesting was that, when an official of the United States government acts in any respect, they act in the name of the people, do they not?


JIM LEHRER: And so if it's an interrogation technique, they're doing it in our name.

MICHAEL MUKASEY: They're doing it under the law in order to gather intelligence lawfully.

JIM LEHRER: The facts in this case, in the case of the three uses of waterboarding involved right after 9/11, the attack on the Twin Towers and the Pentagon, and otherwise. Is it your understanding, is it your feeling that it would take a monumental event like that to ever be used -- for this technique to ever be used again?

MICHAEL MUKASEY: I don't want to anticipate what it might take or what it might not take. The proposal to do it or not is going to come from or not come from the people who are gathering intelligence. And I don't know that it's a matter of a cataclysm.

JIM LEHRER: But they may come up with a set of circumstances and you'll deal with that if and when that happens, right?


Conflict with Bush administration

Michael Mukasey
Attorney General
[F]or that one hat, it says 'attorney general of the United States.' There are a number of jobs that I could do wearing that hat. Advising the president may be one of them, but it's only one.

JIM LEHRER: Correct. Now, you're the attorney general of the United States now because your successor, Alberto Gonzales...

MICHAEL MUKASEY: My predecessor.

JIM LEHRER: Predecessor.


JIM LEHRER: Had to be one or the other, sorry about that. Your predecessor resigned under circumstances that questioned his independence from the White House and the politics of the White House. And you were asked a lot of questions about this when you became attorney general.

What's the state of play for you now in that regard?

MICHAEL MUKASEY: The state of play for that, for me, in that regard, is the same as the state of play in my earlier job, which is that I come to work every day; I answer the questions that I have to answer and make the decisions I have to decide, based on what I think the law requires, with the help of the people I referred to before; and go home at night, start again the next day.

JIM LEHRER: Do you go to work every day thinking, "I am a member of President Bush's cabinet, I have to function as a member of his administration, and I also have to be the chief law enforcement officer of the United States"? And is there ever a conflict?

MICHAEL MUKASEY: Do I go to work thinking about that every day?

JIM LEHRER: Yes, yes.



MICHAEL MUKASEY: I go to work answering questions every day. What you describe may or may not be inherent in the process on any given day.

Obviously, I'm a member of the administration. I go at least weekly to intelligence briefings at the White House. I go to cabinet meetings once a month. I'm clearly a member of the administration.

But when I go to work every day, I go to work to do the work of the Justice Department every day.

JIM LEHRER: Not the work of the White House?

MICHAEL MUKASEY: I do the work of the Justice Department, which sometimes involves advising the White House, because that's one of the proper functions of the Justice Department.

JIM LEHRER: But you're not -- do you see yourself as the president's lawyer?

MICHAEL MUKASEY: If the president asked me for advice, then I would give him the advice of the options that are open to him. And in that respect, I would be his lawyer.

But that's not -- I was asked at one point about wearing two hats. And the response was, for that one hat, it says "attorney general of the United States." There are a number of jobs that I could do wearing that hat. Advising the president may be one of them, but it's only one.

JIM LEHRER: But when you advise the president, it's not a kind of client-attorney relationship, is it? Isn't what you do transparent, as a member of the cabinet and attorney general of the United States?

MICHAEL MUKASEY: Well, there are executive -- there are privileges that apply to any conversations within the executive, including the ones between the attorney general and the president, just as they do between any of the other presidents and presidents' other advisers and the president.

JIM LEHRER: What about personnel matters, the assistant attorney generals and U.S. attorneys and all the people, thousands of people that work for the Justice Department? How much independence do you have in filling openings?

MICHAEL MUKASEY: I have, as far as I'm concerned, all the independence I need. Every one of the people who is staffing a senior position was picked either directly by me or certainly with my approval.

I saw people, said yes to this one, no to that one. And the ones I said yes to are the ones who are proposed and, in some cases, already confirmed. And I have, as far as I'm concerned, all the freedom I need.

JIM LEHRER: I know you're not going to answer any specifics -- and I'm not going to ask you for any -- but have there been any occasions thus far as attorney general where you've been made to be uncomfortable because of something you were asked to do by some political person in the government?


JIM LEHRER: No question that you thought was improper, no piece of advice that you thought was off-the-wall and was improper, for you to take or even seriously consider as the attorney general?

MICHAEL MUKASEY: I've heard people make suggestions about alternatives ways of approaching problems, some of which I thought were inadvisable and said so. And by and large, I think that, by and large, prevailed. But the kind of -- when you say "improper," that shades over into something else.

JIM LEHRER: Sure, improper to you, your definition of improper.


JIM LEHRER: Not mine or anybody else's, but your own.

MICHAEL MUKASEY: Well, I don't simply apply my own tastes. I try to apply standards of ethics and the concept of propriety that I think govern all lawyers, or should. And the answer to that is an emphatic no.

Managing the Dept. of Justice

Michael Mukasey
Attorney General
[I]f I leave that group of people the same way I found it, I'll be very well-satisfied.

JIM LEHRER: Do you feel you have a special burden to protect or restore the reputation of the Justice Department because of the rough times during the tenure of Alberto Gonzales?

MICHAEL MUKASEY: I don't think it's a question of restoration; I think it's a question of maintenance.

When I got there, I found incredibly talented people working from some times earlier than I get there -- and I get there pretty early -- until past I leave, past the time I leave, on a day-to-day basis, the least of whom could be earning multiples of the salary that they earn at the department, and all of whom constitute collectively the most talented group of lawyers I've ever worked with, and support staff, doing it on a day-to-day basis.

That's what I've found. And if I leave that group of people the same way I found it, I'll be very well-satisfied.

JIM LEHRER: Then nobody who's listening to you now or at any other time should be worried about the functioning of the Justice Department? The Justice Department works, is that what you're saying?

MICHAEL MUKASEY: It certainly does, and it works very hard. And I'm not just including myself, obviously.

JIM LEHRER: But it works as an independent law enforcement agency for the United States of America?


JIM LEHRER: Mr. Attorney General, thank you very much.

MICHAEL MUKASEY: Thank you very much.