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Attorney General Nominee Mukasey Questioned on Torture Views

October 18, 2007 at 6:15 PM EDT

JUDY WOODRUFF: Day two of Michael Mukasey’s confirmation hearing before the Senate Judiciary Committee looked much different than yesterday. Gone was the large media throng, and several committee members also took a pass on this second day.

Those that did show, however, engaged in a series of sharp exchanges with the attorney general nominee over his views on torture. Illinois Democrat Dick Durbin began, pressing Mukasey on whether he thought techniques such as forced nudity and waterboarding, or simulated drowning, were, in fact, acts of torture, and therefore violations of U.S. policy.

SEN. DICK DURBIN (D), Illinois: I want to understand as to these interrogation techniques whether you believe that they would constitute torture and therefore could not be used against any detainee, military or otherwise, by the United States government.

MICHAEL MUKASEY, U.S. Attorney General-Designate: … I’m sorry, I can’t discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar, when there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial. I don’t think it would be responsible of me to do that.

SEN. DICK DURBIN: This is not a congeniality contest, and I’m sorry that I’ve gone over, Mr. Chairman. But, for instance, I just want to, if I can make one last point, on the issue of waterboarding, simulated drowning, the torture statute makes it a crime to threaten someone with imminent death. Waterboarding is a threat of imminent death.

MICHAEL MUKASEY: It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else.

JUDY WOODRUFF: Committee Chairman Democrat Patrick Leahy quickly picked up on Durbin’s line of questioning.

SEN. PATRICK LEAHY (D), Vermont: If you have a law that says that it is torture and it is not allowed, is there any way it could be still authorized?

MICHAEL MUKASEY: If it is torture as defined in the Constitution, or as defined by constitutional standards, it can’t be authorized.

JUDY WOODRUFF: The committee’s top Republican, Arlen Specter, also had questions.

SEN. ARLEN SPECTER (R), Pennsylvania: Well, where in the Constitution is torture barred?

MICHAEL MUKASEY: It’s barred by the Fifth, the Fourteenth, and the Eighth Amendments. The Fifth and the Fourteenth Amendments bar conduct that shocks the conscience.

JUDY WOODRUFF: Rhode Island Democrat Sheldon Whitehouse asked if that included waterboarding.

SEN. SHELDON WHITEHOUSE (D), Rhode Island: So is waterboarding constitutional?

MICHAEL MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE: If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning, is that constitutional?

MICHAEL MUKASEY: If it amounts to torture, it is not constitutional.

SEN. SHELDON WHITEHOUSE: I’m very disappointed in that answer. I think it is purely semantic.

JUDY WOODRUFF: Mukasey’s testimony today lasted more than two hours, during which he went on record opposed to a law shielding news reporters from being forced to reveal sources. And Mukasey again vowed to restore morale at the Justice Department.

His nomination now must be approved by the committee and then the full Senate, both of which seem assured.

Testier second day for Mukasey

Douglas Kmiec
Pepperdine University School of Law
He was demonstrating that he has the capacity to be independent, not just of the White House, but also of Congress, that he's going to call them as he sees them with his judicial demeanor and with his informed understanding of the law.

JUDY WOODRUFF: For more, we are joined by Scott Horton, legal affairs contributor at Harper's magazine. He writes the magazine's No Comment blog and at one time was a law partner with Michael Mukasey.

And Douglas Kmiec, a former Justice Department official during the Reagan and first Bush administrations, he is now a professor of constitutional law at Pepperdine University.

Gentlemen, thank you for being with us. I know you both were watching these hearings yesterday and today. Yesterday, Judge Mukasey met a pretty warm reception, even by the Democrats. Today was testier, I think by all accounts.

Scott Horton, you've known Michael Mukasey over 20 years. What's your sense of why this happened?

SCOTT HORTON, Harper's Magazine: Well, it's not surprising, I think. You know, the first day was a "get to know you." It was something of a love-fest. And Judge Mukasey was allowed to give some rather formulaic responses to some of the more difficult questions.

And I think today, there was a lot of pressure brought to bear to get the senators to bear down on the really difficult questions, particularly on the coercive interrogation issue. And I think we've got to understand this against some background.

At the end of last year, leading generals and admirals went to Congress and made the case very clearly: They didn't want these techniques being used. They discussed all the techniques, including techniques that Judge Mukasey wouldn't discuss today. They took a very clear position that these things were illegal, not just that they violated the Geneva Conventions, but also they violated U.S. law.

And as a result of that, a result was taken to end these practices for the military. But the administration has pushed ahead with the idea of retaining them, at least in some form, for the CIA, and that's the big question in the background here.

JUDY WOODRUFF: Well, let me pick up on that, because yesterday -- and I want to turn to Doug Kmiec at this point -- yesterday, when Judge Mukasey was asked about using these harsh interrogation methods, at one point he said that memo -- he was referring to the memo back in 2002 out of the Justice Department which, in effect, endorsed this kind of technique -- he said it was worse than a sin, it was mistake, it was unnecessary, and he was, in effect, praised for that. But today, his answers didn't satisfy the committee, the Democrats.

DOUGLAS KMIEC, Former Assistant Attorney General: Well, Judy, we did have almost two different hearings. Yesterday, it was a get-together. It was a, "Welcome, Judge Mukasey." And then he demonstrated very clearly that he's a person of independent thought.

And he said yesterday -- and what got him most praise and applause yesterday -- that he was going to be independent of the White House, in terms of exercising legal judgment, that he knows the difference between law and politics, and that a responsible line has to be drawn between the White House and the Department of Justice as it gives objective legal advice.

Today, the focus became, as Mr. Horton mentioned, very specific. And here he was demonstrating that he has the capacity to be independent, not just of the White House, but also of Congress, that he's going to call them as he sees them with his judicial demeanor and with his informed understanding of the law. And sometimes that means he's going to come down on the side of presidential authority as against the wishes of Congress, as well.

And I think all of this goes to suggest that we have a person of integrity here who's not given to giving glib, or short, or pat answers, and who's going to want to know all of the facts and background.

Few surprises for committee

Scott Horton
Harper's Magazine
There's absolutely no question here about the qualifications of Michael Mukasey... And I think there's no question that he's going to be confirmed.

JUDY WOODRUFF: So, Scott Horton, are you saying that the committee members heard something from Judge Mukasey today that surprised them?

SCOTT HORTON: I think they heard, more or less, what they were expecting to hear, but I think it disappointed them. And I think a number of the members of the committee are very concerned about in some way tacitly approving the torture or coercive interrogation policy.

I mean, this issue's come up several times now, of course. We have the nomination of Mr. Rizzo to be general counsel of the CIA. Well, that went down on precisely this issue, with a number of senators saying they could not vote to confirm him because of the positions he took on this issue. And likewise, we're now seeing very strong objection to Mr. Bradbury for exactly the same reasons.

But, you know, I come back to very much the same assessment that Doug Kmiec offers here. I think the top note of the testimony was strong, and that was a clear and unequivocal commitment to independence and integrity, to a reinvigoration of the Justice Department. That came through very clearly the first day. I think people are very, very happy about that.

I'd also want to stress there's absolutely no question here about the qualifications of Michael Mukasey. In fact, I go back to the last segment you had at the end of August, when you had a former -- Jamie Gorelick talking about the qualities of the perfect attorney general...

JUDY WOODRUFF: This is when he was named. That was when he was named.

SCOTT HORTON: That's correct. Well, when Gonzales announced he was going, before he was named, and Jamie Gorelick said, "We need another Edward Levi." And I kept watching him yesterday and today thinking, "That's exactly what this committee has." This man really is someone in the mold of Edward Levi. He is independent. He's a person of absolutely unquestioned integrity. And I think there's no question that he's going to be confirmed.

Sen. Leahy's criticism of Mukasey

Douglas Kmiec
Pepperdine University School of Law
If you actually look at the transcript from today's hearing, one sees a person who is very careful with his words. He does not know at this point what the extent of coercive interrogation that has been authorized by the White House.

JUDY WOODRUFF: And even the committee chairman, Patrick Leahy, who's a Democrat, Douglas Kmiec, suggested as much today. But he also said in his closing statement -- I'm just quickly quoting -- he said, "I'm especially troubled by his" -- meaning Mukasey's -- "retreat today from his clearer statements yesterday on the rule of law and the president not being above the law."

DOUGLAS KMIEC: Well, Pat Leahy is a good lawyer. He's a former prosecutor himself. And, in fact, I think when he reflects on this, he'll understand why these answers were given as carefully as they were.

If you actually look at the transcript from today's hearing, one sees a person who is very careful with his words. He does not know at this point what the extent of coercive interrogation that has been authorized by the White House. So, remember, he said, "I'm not going to just be congenial, by using words that give you comfort, suddenly put someone in jeopardy in terms of their liberty or freedom." He wants to review the facts of that, first.

I agree with Mr. Horton. It would have been, I think, much to his service to reference the fact that these extreme techniques have been very much put aside and defined as torture, that the Army field manual is really the basic standard, is the core standard of a civilized world. And I think Senator Whitehouse more or less brought those points out.

And, Judy, in terms of completing this process, I have a feeling that, in terms of the written answers that Mr. Mukasey gives, he's going to be giving answers that will fully satisfy Senator Leahy and the other members of the committee. He's just not prepared to give glib, pat answers on a hypothetical basis in an open forum that could put someone's life and liberty in jeopardy.

New direction of Justice Department

Scott Horton
Harper's Magazine
I think it's been a long time since we've had an attorney general nominee who's someone who has his heart and soul in the Department of Justice as an institution. That's definitely the case with Michael Mukasey.

JUDY WOODRUFF: I think what a lot of people are asking -- and you've seen this in the press coverage -- that in so many words has described him as representing a new direction even for the Justice Department, people are looking to see, does he represent that? Scott Horton, how would you answer that?

SCOTT HORTON: I think so. You know, I think it's been a long time since we've had an attorney general nominee who's someone who has his heart and soul in the Department of Justice as an institution. That's definitely the case with Michael Mukasey.

He's not someone who has a political background, a background of deep engagement. He's a lawyer's lawyer. I look at him and I think of those famous words of Elihu Root, when he said that half the practice of a good lawyer sometimes is to tell a client he's a damn fool and he needs to observe the law.

Well, that's a key test here. A lot of senators were asking him, and I think nobody questions but that Michael Mukasey is that type -- will be that type of attorney general.

JUDY WOODRUFF: And as you pointed out, you're saying all this being in disagreement with him on a number of these elements of civil liberties and interpreting the Constitution. Doug Kmiec, what about this question of whether he represents -- how much of a change is he from his predecessor, Alberto Gonzales?

DOUGLAS KMIEC: Well, I think much to his credit, throughout the entire hearing, Judy, he deliberately and very consciously refused to indulge in criticism or comparison of himself with his predecessor. Instead, he just set the standard high.

When asked whether he felt he was up to the responsibility, what his vision for the department was, he very clearly said, "I'm going to take full advantage of the widespread advice and talent of the career service officers in the Department of Justice." I have a feeling that lifted the morale of the department in and of itself.

And he also, in terms of the qualities of being a fine lawyer, has reminded both the public and the Senate Judiciary Committee today that, when there's no need to press an extreme position or look for an unnecessary response to a hypothetical pattern, you shouldn't do it.

More than once he said, "We shouldn't see these things as black and white." His expression was, "We should never get to push comes to shove if we don't need to get there." He's a pragmatic decision-maker. He's someone who's going to solve problems. He's going to take full advantage of the departmental personnel.

And when it comes to each of the issues that he was asked about -- torture, surveillance, the media shield, executive privilege, voting rights, violent crime -- notice he's going to want to know the facts and the background and the context before he reaches a deliberate conclusion. And by virtue of that, he's demonstrated, I think, what all of the lawyers in the department strive for, and that is a sense of equal justice and even-handedness under law.

JUDY WOODRUFF: Well, we are going to be looking to the Senate Judiciary Committee to make a decision. Douglas Kmiec, Scott Horton, we thank you both.

SCOTT HORTON: Good to be with you.