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Mukasey Weighs Waterboarding, Sept. 11 Charges

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.

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  • 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?

  • MICHAEL MUKASEY:

    It does.

  • 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.