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

Interview

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SEN. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman.

And Judge Mukasey, I want to welcome you to your first oversight hearing as attorney general. In many ways, both good and bad, you are the type of attorney general I expected you to be when I voted for your confirmation.

On the good side, you have acted decisively in several ways to clean up some of the stench of politics and ideology at the Department of Justice. You allowed an OPR investigation to continue that had stalled under Attorney General Gonzales. As Senator Kennedy noted, you launched a full-blown investigation into the CIA tapes, with a good prosecutor. You reinstituted rules limiting contacts between the White House and the Justice Department. You recalled a much- criticized U.S. attorney in Minnesota to Washington, made good on your promise to Senator Feingold to address the question of equal access to DOJ facilities by gay and lesbian groups. And it seems, in many ways, there's at least been a beginning of the return of morale at the department.

So on issues where I expected you would be a good attorney general, you have largely been.

On other issues, however, especially related to executive power and torture, I never expected your views to be mine, and in fact they differ dramatically from mine, those of many of the members of this committee, many experts and the majority of the American people. Nonetheless, I thought there was a hope -- not large -- that you just might rise to the occasion. So I'm not surprised with your testimony, but I do remain disappointed.

And I'd like to talk to you about that issue, the issue of waterboarding. Now you've had a chance to further educate yourself about coercive methods of interrogation.

Having done that, do you still find the method waterboarding described in our October letter "repugnant," as you stated in the letter back to us?

ATTY GEN. MUKASEY: As a personal matter, yes.

SEN. SCHUMER: Yeah, that's how you stated it.

ATTY GEN. MUKASEY: Yes, I do.

SEN. SCHUMER: Yes, okay.

Now, separate from the pure legal question, which is what we've talked about mostly here today, given that the method is repugnant to you, do you support a ban on waterboarding, whether by statute or executive order? As you know, there is such a statute that Senator Feinstein -- I was a cosponsor of it -- has in the -- was very good at putting in the intelligence authorization. I think it's now in the intelligence conference, so it's going to come close. So do you support -- let me repeat that. This is not asking the legality. Do you support a ban on waterboarding, whether by statute or executive order?

ATTY GEN. MUKASEY: There are two parts to that.

One part, as a general matter, as a matter of principle, I don't -- and I try to avoid -- I tried it when I was a judge, I try it -- I try to do it now -- I try to avoid using the blank canvas of either existing laws or proposed laws on which to paint my own moral tastes and my own beliefs as to whether something's repugnant or not.

Passing that, the question of whether waterboarding should be outlawed or shouldn't be outlawed is a question on which other people own a substantial part of the answer, notably the people involved in gathering intelligence, using intelligence, processing intelligence, explaining our position abroad -- that is the State Department, which does, by the way, a superb job of it -- all of those people have to be -- have to be heard. And --

SEN. SCHUMER: Judge, we know that.

ATTY GEN. MUKASEY: Okay. One of the things, though, that I would want to do before expressing my own view as the junior member of the entire assemblage I've just named is hear them.

SEN. SCHUMER: You know, okay, I really -- that is not up to your usual standard of answer here. I didn't ask you -- I know you'd want to hear from a whole lot of people and stuff, but you've already stated something to be repugnant. I'm asking you -- one of your roles as attorney general is not simply a decider or what's legal or not legal -- that's your most important function -- but it's an adviser on policy. Now, I find it hard to understand how you personally, when asked for advice, would not be able to say that something that's repugnant should be outlawed. I mean, I'm asking you the hypothetical not of what existed three years ago and not what even exists today. You've stated what exists today.

I'm asking you -- there's a statute. It's not an irrelevant question. You're likely to be asked the question if you haven't been already. There's a statute that's likely -- very likely to get to the president's desk.

And I'm just asking you, in terms of the advice you would give the president, your own personal view, whether by statute or executive order, should waterboarding be outlawed, period? You said it's repugnant. I don't understand how you can now say, well, I have to ask a whole lot of other people. (Chuckles.) I'm asking you your view.

ATTY GEN. MUKASEY: Senator, I don't want to trivialize the question, so I'm going to refrain from telling you all the other things that I find repugnant. But suffice it to say, that whether something is or isn't repugnant to me, taken by itself, isn't the basis of my recommendation about whether it ought to be outlawed. I want to hear from other people. I want to hear other views. I want to analyze it as a policy matter. I want to be able to imagine, if I can, all of the facts and circumstances in which the question may arise --

SEN. SCHUMER: Now, when you have --

ATTY GEN. MUKASEY: -- and get the assistance of the people, the talented people that I have at the Justice Department.

SEN. SCHUMER: When you had the discussion, I think, with Senator Biden and then Senator Durbin, you were talking about a standard. And you'd have to see the fact situation meet the standard. You didn't say that to us. You didn't say waterboarding is sometimes repugnant or might be in certain circumstances repugnant. You said it's repugnant. You didn't have any qualifiers.

ATTY GEN. MUKASEY: The qualifier was, "to me."

SEN. SCHUMER: Yes.

ATTY GEN. MUKASEY: That's a big qualifier.

SEN. SCHUMER: So I just find it -- you have an opportunity here to be something of a leader, I guess, and you are going to be asked whether we should pass a law -- this does not get into the conundrum of what to do about past -- the past, which I know you wrestle with. But we have an opportunity not to simply say, "this time there's won't be waterboarding."

But it's the policy -- we all know that the military has made it its policy. We all know that, you know, there are all kinds of experts in the same sort of -- in a more difficult situation than you, on the battlefield who say it should be outlawed. You find it repugnant, and yet you can't say, that it's your view there ought to be a law to outlaw it? And that doesn't put into jeopardy any of the people you are, you know, the -- supervising, I guess, in a broader sense.

ATTY GEN. MUKASEY: When I was a judge, I was not a settling judge, because to me, it posed a danger of taking the authority of my office and putting my personal tastes into it and putting my thumb on the scale one way or the other. I'm now the attorney general, and for me to take my personal reaction to something and to put the authority of that office on the scale when I haven't heard all of things -- I've told you, I think, I have to hear -- is to me just as big a mistake.

SEN. SCHUMER: I have to tell you how profoundly in this particularly situation I disagree with you.

ATTY GEN. MUKASEY: I'm happy to hear that I lived up to expectations. I'm very sorry to hear that I lived down to them.

SEN. SCHUMER: Thank you.

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