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Morning Session of a Hearing of the Senate Judiciary Committee - Oversight of the U.S. Department of Justice

Interview

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Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

SEN. BIDEN: Yes and, but I, you have a lot of fans who are friends of mine who have said very good things about you, and I -- it's nice to see you in person.

General, I'm a little confused and I don't want to go into whether waterboarding is torture or not. I want to understand sort of the methodology you use in trying to -- because some of what you say -- maybe it's just that I'm a little slow -- doesn't seem to make a lot of sense to me about this issue of waterboarding.

When you boil it all down, in the answers I heard today and what I've read of what you submitted, it appears as though whether or not waterboarding is torture is a relative question, where it's not a relative question whether or not you hung someone by their thumbs from, you know, or you stuck someone, you know, hung them upside down by their feet. I mean, but you talk about waterboarding in relative terms.

For example, am I getting it right? If waterboarding, if a person in the government, CIA or any government agency, engaged in waterboarding of a captured prisoner, and the purpose of it was because they believed that prisoner knew where there was a nuclear weapon hidden, about to be detonated, in the city of Washington, then that might be okay. But if they just waterboarded them just to find out whether or not, where they purchased their airline ticket, that might not be okay. That's what it seems like you're saying.

ATTY GEN. MUKASEY: With respect, I don't think that that's what I'm saying. I don't think I'm saying it is simply a relative issue. There is a statute under which it is a relative issue. I think the Detainee Treatment Act engages the standard under the Constitution, which is a shocks-the-conscience standard, which is essentially a balancing test of the value of doing something as, against the cost of doing it.

SEN. BIDEN: When you say against the cost of doing it, do you mean the cost in -- that might occur in human life if you fail to do it? Do you mean the cost --

ATTY GEN. MUKASEY: No.

SEN. BIDEN: -- in terms of our sensibilities, in what we think is appropriate and inappropriate behavior as a civilized society? What do you mean?

ATTY GEN. MUKASEY: I chose -- I chose the wrong word. I meant the heinousness of doing it, the cruelty of doing it balanced against the value.

SEN. BIDEN: Balanced against what value?

ATTY GEN. MUKASEY: The value of what information you might get. And in one of --

SEN. BIDEN: That's what I thought you --

ATTY GEN. MUKASEY: In one of your hypotheticals, there was getting some historical information or some other information that couldn't be used to save lives. And one wouldn't have to get to the question of whether that was torture or not to find it would shock the conscience to do it in those circumstances.

SEN. BIDEN: Well, I do understand it, then. So the shocking of the conscience is a -- is again where the relevance comes in. If the purpose of the waterboarding was to, you know, save humanity from 20 nuclear weapons going off, that's one thing. If the purpose of the waterboarding was to find out who the commanding officer of that individual was, that's another thing.

I've never heard the statute -- I've never heard torture referenced in those ways.

ATTY GEN. MUKASEY: That's not --

SEN. BIDEN: I never heard --

ATTY GEN. MUKASEY: That's not -- that's not in the torture statutes.

SEN. BIDEN: Well, I've never heard any discussion of shocking the conscience in those ways. I didn't think shocking the conscience had any relationship to the end being sought. I thought shocking the conscience had to do with what we considered to be basic societal values, things that we held dear, what we considered to be civilized behavior. You're the first person I've ever heard say what you just said.

Now, I'd be delighted -- and I don't want to pursue this unless you do. I'd be delighted to have your staff of the Justice Department give me anyone else who, in the past, has referenced the discussion of shocking the conscience in the context you just referenced it. I find it to be fairly unique. Matter of fact, it shocks my conscience a little bit. But I find it -- I've never heard that discussion.

You know, you and I went to law school. I went to a Catholic school where I had to take two semesters in high school, two periods a day of Latin. And I remember Cicero, too, although I -- even as an altar boy, I forget my Latin. But the truth of the matter is, I've just never heard the issue of torture discussed in -- or what constitutes torture, which is defined by shocking the conscience -- in terms of the relative benefit that might be gained from engaging in the technique. I find that -- I find that pretty -- none of the Aristotelian logic I was trained by ever got me there.

I don't understand that premise.

But at any rate, let me move on. I find one of -- you know, we all -- we're all senators very proud of -- hopefully very proud of what we try to accomplish. One of the things I take great pride in -- and it's self-serving -- is having authored the Crime Control Act of 1994, putting 100,000 cops on the street and putting $10 billion into prevention and $10 billion into prisons. And I thought that was a pretty good deal. I thought it worked pretty well. And I've essentially reintroduced that and gotten overwhelming support in the House and the Senate. We passed it, reauthorizing the COPS program primarily, but it goes beyond that.

And the president -- it was passed in the omnibus bill, got -- the omnibus bill got vetoed. When the bill came back to us in a compromise, the Byrne grants were dropped significantly, and the COPS program was essentially all but eliminated again.

And the rationale proffered to me was that, you know, violent crime is down; we're having -- it's near historic lows. And your proposals relating to dealing with violent crime -- your, the administration -- are sufficient, although they're a billion dollars less than we had been spending -- are sufficient to deal with the problem. And we cite statistics of violent crime being down or up by less than a percent in '05, '06, '07, et cetera.

But the fact is, in 2006, there were still 1,417,774 violent crimes committed in America, and 17,034 murders. Now that's down from the high of 1992, of 23,760. The numbers are not particularly relevant, except the point I want to make is this. I hope you'll reconsider the utility and the necessity of the Biden crime proposal that was put back in with the help of a lot of people around this table, because I'm not prepared to accept 1,400,000 violent crimes a year is an acceptable standard for American behavior. Disraeli once said there are three kinds of lies: lies, damned lies, and statistics. And I would respectfully suggest that the statistical analysis of crime being up or down begs the question. I find it absolutely unacceptable that in the United States of America, that we still have 1,417,774 violent crimes committed in '06, 17,034 murders.

And so I would think that the single biggest bang for the buck, based upon all the data your office has acknowledged in the past, that the more cops we have in the street, the further the violent crime drops. It's a simple proposition.

I've been on this committee for years and years, and I was chairman of it or ranking member for 17 years --

SEN. LEAHY: It's time --

SEN. BIDEN: -- and I'll conclude with this comment: that the only thing I learned for sure about crime is if there's three -- four corners, three cops on three of the four corners and a crime's going to be committed, it'll be committed where the cop's not.

And so I'd urge you to take a look at the legislation again.

ATTY GEN. MUKASEY: I agree with you that the strategy is not to tolerate any level of violent crime, certainly not at the level that you've suggested. What we are trying to do is to target grants to go where the need is and to gather information on what works best and to get it out to the people who need it.

SEN. BIDEN: With all due respect, we know what works best. As old Ronald Reagan used to say, if it ain't broke, don't fix it. It was working; you guys broke it.

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