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Panel II of a Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States


Location: Washington, DC

Panel II of a Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States


SEN. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman.

Judge, I'm sure you're going to make a fine attorney general -- (chuckles) -- and this is just the price you have to pay -- to talk to all of us. (Chuckles.) But I think it'll be worth it for you and the country at large.

But you've had a lot of good questions on both sides of the aisle here about the role of the Congress, the courts and the executive branch when we're at war, And I guess the first question I would like to ask you, since you're a New Yorker -- did you -- do you consider the attacks of 9/11 a criminal act or an act of war? And you've got to pick between the two.

MR. MUKASEY: If I've got to pick between the two, they're an act of war.

SEN. GRAHAM: Well, I agree with you. So we're in good standing with me already -- you are.


SEN. GRAHAM: See, I think we're at war. I think in the -- the law that one would apply, if you looked at this as a war, would be different than domestic criminal law. And I've been a military lawyer for 25 years, and I'm very proud of our military legal system. And because you apply the law of armed conflict doesn't mean you don't have due process.

Now, when it comes to detention and interrogation of unlawful enemy combatants, here's some the laws that I have made a list of that apply to the situation about how we detain and interrogate someone that we believe to be an unlawful enemy combatant.

The Supreme Court in the Hamdan case said the Geneva Convention applies. Do you agree with that? That's the -- that is now the law. I don't agree with the court's holding, but that's what they said.

MR. MUKASEY: If what they meant is that it applies to interrogation, then it clearly applies to interrogation. I --

SEN. GRAHAM: Well, Judge, they said that Common Article 3 applied to the war on terror. Now, I disagree with that, but that is the law as I understand it, that Common Article 3 now applies to the war on terror.

MR. MUKASEY: If that's their reading on something other than a procedural basis, then --

SEN. GRAHAM: Well, I think that's substantive holding, but go back. If you disagree with me, you can tell me in writing, but I believe it does, even though I wouldn't have decided it that way, that's a court.

The Uniform Code of Military Justice is a congressional statute that regulates the conduct of the military vis-a-vis many things, but including how one treats a detainee. Are you familiar with that?

MR. MUKASEY: I know of that, yes.

SEN. GRAHAM: Do you think that's a lawful thing for Congress to do, to place restrictions on our military when it comes to how they will treat somebody in their capture?

MR. MUKASEY: On our military?



SEN. GRAHAM: It's a crime -- okay, good.

So for the soldiers who may be watching this hearing, the Uniform Code of Military Justice regulates your conduct regarding someone that you may find or capture on the battlefield, and I think you're taught what to do there. And I just wanted to acknowledge that I think that is a power Congress has, and we're going to have to live within that.

The Military Commissions Act also regulates the detention and the trying and the treatment of enemy prisoners. That's a congressional enactment. Do you agree that that's a valid legal document?



The Detainee Treatment Act is an enactment by Congress that regulates -- think you've talked about it pretty well -- what we can and can't do to someone we capture -- cruel, inhumane and degrading treatment. Do you consider that a valid source of law?



We have many international treaties that regulate our conduct because we're signatories to those treaties. Do you think it's incumbent upon us to live up to those treaty obligations?

MR. MUKASEY: I think it's incumbent upon us to live up to them. The question of whether they're self-executing or not is a very delicate question, and I'm not prepared to deal with it.

SEN. GRAHAM: Fair enough.

The only point I'm trying to make is that we've had a fight that's been unnecessary for far too long, between the Congress and the administration, over what roles we play. I am convinced that we're only going to win this war if we act in concert to the best of our ability.

And I really applaud your testimony earlier when you said that America's is its strongest not only from a legal point of view, but from just a(n) effective point of view when all three branches are on the same sheet of music.

Now, here's where I part from some of my colleagues about what the law requires of the United States. Would you advise the president of the United States to allow unlawful enemy combatants to have habeas rights, to grant them habeas corpus rights at Guantanamo Bay?

MR. MUKASEY: I would not advise the president to grant rights beyond those that they already have, which include, as I read it, eventually an appeal that is certainly on an appellate level more substantial than --

SEN. GRAHAM: Right. The big issue for us as a country is who should determine the status of a potential enemy combatant. It is my view that under the Law of Armed Conflict, under Geneva Convention Article 5, that is a power reserved to the military. A habeas petition would allow the potential enemy combatant to take their case to a federal court of their choosing, and the power to determine the status would be given to a federal judge, not to our military, and I object to that.

How long have you been a federal judge?

MR. MUKASEY: I was a federal judge for 18 years -- almost 19 years, actually.

SEN. GRAHAM: My concern is that if we allowed every enemy combatant to have a full-blown habeas trial, we would be giving al Qaeda and other groups that fall into the designation more rights than the German and Japanese and that we would be creating chaos for our country and the war on terror. And I will read a quote here from Justice Jackson in the Eisentrager case.

Are you familiar with that at all?


SEN. GRAHAM: He said, "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he's ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home;" nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion, highly comforting to enemies of the United States."

Do you associate yourself with that concern?

MR. MUKASEY: Yes, I do.

SEN. GRAHAM: Now, as I understand the Military Commission Act, every detainee at Guantanamo Bay will have access to federal court.

Is that your understanding?

MR. MUKASEY: Eventually after the CSRT process is completed.

SEN. GRAHAM: And the D.C. Circuit Court of Appeals will be able to look at two things -- whether or not the evidence justifies defining by the military of a preponderance that the person is in fact an enemy combatant, and they will also look at whether or not the procedures in question are constitutional.

Is that your understanding of the law?


SEN. GRAHAM: And that's the Bismillah case. Is that correct?

MR. MUKASEY: I believe so.

SEN. GRAHAM: I have proposed for many years now, and I will reassert this idea, that one way to make the CSRT process better would be to provide military legal counsel to unlawful enemy combatants. How does that idea strike you?

MR. MUKASEY: I don't know what the process is now. I certainly -- I mean, I said when -- in the Padilla case that once you've conceded that somebody had the right to file a habeas petition, there was no practicable way, particularly in that case, for one to do it other than through a lawyer.

SEN. GRAHAM: One of the practical effects of an enemy combatant determination is that there could be a de facto life sentence, because this is a war without a definable end. Do you agree with that?


SEN. GRAHAM: So we need to come up with a process that's a bit of a hybrid of the traditional Law of Armed Conflict.

I've also suggested in the past and will suggest again in the future that the tribunals in question, the Combatant Status Review Tribunals, be managed by a military judge. Do you have a problem with that?

MR. MUKASEY: I do not.

SEN. GRAHAM: Okay. Well, we will be talking much further in depth about these issues because they're new, they're novel and they're important.

And I would end with this, Mr. Chairman. I'm often asked about why do you want people to have lawyers who will cut our heads off, and why do we not waterboard people to get information to make us safe, because at a certain level, Americans understand that the people we're fighting have absolutely no boundaries, and some of them believe the law is a nicety and is a weakness. I believe that the law is one of the strongest things we have in our arsenal against our enemy. Do you agree with that statement?


SEN. GRAHAM: And if you want to throw everything that America has against the enemy, the best thing we could throw at the enemy is a process that the world would want to emulate and be proud of. Do you agree with that?


SEN. GRAHAM: Wouldn't it be nice to show Sunnis and Shi'as and all those who have grudges and seek revenge that there's a better way, and there is no better way for America to lead the world when it comes to the war on terror than take an enemy who has done us terrible harm and treat them in line with our values -- give them lawyers when they would give us none, have a process where the civilian court could review the military work product and let the world know that whatever happened, that the enemy combatant wasn't a result of religious prejudice, anger or revenge, but was a result of due process of law. Don't you think that's the best way to fight this war?

MR. MUKASEY: I do. I'm reluctant to add a footnote, but I have to --

SEN. GRAHAM: Please.

MR. MUKASEY: -- and that is that so long as we don't compromise our ability to gather intelligence as we do that.

SEN. GRAHAM: And it's my understanding that every one of these provisions I just outlined about what happens to a detainee in our charge -- that you support that the law be applied, that when we capture someone, that we do have to live within the law that applies to the detainee's treatment. Correct?


SEN. GRAHAM: Now, Sheikh Mohammed -- I was at his Combatant Status Review Tribunal. There's allegations that he may have been waterboarded. For about an hour and a half, he spoke about his involvement in 9/11 and other acts of terrorism without one person touching him, so I have no doubt that he did what he said he did. But if there were evidence obtained to waterboard him, would you be comfortable with that evidence being used in a military trial?

MR. MUKASEY: I don't know what's involved in waterboarding. I would be uncomfortable with any evidence being used in a trial that's been coerced. So I'm --

SEN. GRAHAM: And one of the reasons you would be uncomfortable is because what we set in motion could come back to haunt us. There was a proposal last year -- and I will end on this thought -- that in our military commission system, it would be okay for the prosecutor to hand a document or a piece of evidence to the jury marked "classified" to be considered on innocence or guilt and never shared with the accused because of national security concerns.

My fear with that procedure would be one day that maybe one of our guys or gals would be caught in Iran trying to figure out what the Iranians are up to and that there would be a trial conducted in Iran where the Iranian judge would receive a document from the Iranian prosecutor marked "classified," never shared with the American accused, the person would be found guilty, sent to the death chamber, and we would lose the right to object to that proceeding.

The point I'm trying to make is, what we do now on our watch can come back to affect us in other wars. Do you agree with that?

MR. MUKASEY: I agree that it can, yes.

SEN. GRAHAM: You're in a unique position, in a unique time in American history, to make sure that we balance our national security interests against the values that make us stronger than our enemy, and I have every confidence you will do a good job.

Thank you.


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