Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the U.S.

Statement

Hearing of the Senate Judiciary Committee Morning Session - Continuation of Executive Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman.

Picking up on this issue, you testified yesterday that the president cannot order torture, because it would violate a statute. In light of your answer a moment ago, would you say that is because the president does not have Article II power, to protect the country, to authorize torture?

MR. MUKASEY: The president can't authorize torture, because torture is barred both by statute and by the Constitution. And I'd be happy to walk back through that if you wish.

SEN. SPECTER: Well, where in the Constitution is torture barred?

MR. MUKASEY: It's barred by the Fifth, the 14th and the Eighth Amendments. The Fifth and the 14th Amendments bar conduct that shocks the conscience. They've been so interpreted.

SEN. SPECTER: Fine. I see your rationale.

Let me move on the same issue to the Foreign Intelligence Surveillance Act, FISA. That provides that the exclusive procedure for obtaining a wiretap is to go and get a warrant on probable cause. Was the president permitted to violate FISA because of his Article II powers, or was his violation of FISA a violation of law?

MR. MUKASEY: I'm not sure what violation it is we're talking about. If we're talking about the Terrorist Surveillance Program, I think I said yesterday --

SEN. SPECTER: I'm talking about the Terrorist Surveillance Program, which has warrantless wiretaps, contrasted with FISA, which says the exclusive procedure to have a wiretap is to get a warrant. Now, what the president did violates FISA. Is it justifiable on his Article II powers because -- well, that's the question.

MR. MUKASEY: As I understand it, the president believed at the time and still believes that FISA was not the only applicable statute; that part of -- that he was acting with authorization under the authorization for the use of military force. I understand that there are -- there is more than one view on that. He gave a long --

SEN. SPECTER: Judge Mukasey, I don't think anybody --

MR. MUKASEY: I'm sorry?

SEN. SPECTER: -- ever really seriously contended that our resolution of September 14th authorizing the use of force encompassed a violation of FISA. But let me move on.

There are so many issues to cover, that I want to move into another area. I think the record is fairly clear as to your views on Article II power and the statute and what you said on torture.

Before proceeding to some other issues, I want to make a comment about Steve Bradbury, who's the acting assistant attorney general, Office of Legal Counsel. There has been a request -- some members of the committee, some senators, have asked that his -- that he be withdrawn from that position. I believe he's very competent and I believe he ought to be confirmed.

And people disagree with things he has done, but those acts on Mr. Bradbury's part have been carrying out the president's orders, and I think he has no choice on that. We've been into that in some detail with Attorney General Gonzales when we had an issue about having Office of Professional Responsibility see if the Terrorist Surveillance Program was properly authorized under the law.

And Attorney General Gonzales said that was the president's decision, put it squarely on the president, and I think that's what's happened with Steve Bradbury. And in June and July, there was considerable discussion about the telephone companies' responsibilities. And the committee, when I chaired it, was moving for subpoenas, and Vice President Cheney intervened and talked to members of the committee on the Republican side without talking to me.

And I want to put in the record a letter I sent to the vice president on June 7th, 2006, and his reply to me on June 8th, 2006 --

SEN. LEAHY: Without objection, it will be part of the record.

SEN. SPECTER: -- because they're relevant to my comments about Steve Bradbury. Following those letters, Mr. Bradbury and my staff and I had very extensive conversations about legislation which I had introduced to put the Terrorist Surveillance Program under the Foreign Intelligence Surveillance Court. And I found him to be very competent and very professional and very direct and very able -- candidly, unusually so for someone in the Department of Justice. And that led to a direct meeting I had with President Bush, who agreed to support the legislation, which Mr. Bradbury and my staff and -- well, Mr. Bradbury, others in the administration and my staff and I had worked out. And I thought Steve Bradbury was A-plus. And I've had dealings with him since on a lot of very complex legal issues, and I think he ought to be confirmed, certainly ought not to be ousted.

Now on to the issue of Reporter's Privilege. There is legislation pending which would give the reporters a qualified privilege. You and I discussed this informally. There have been many subpoenas issued in both state and federal courts, and the Hearst Corporation summarized them. There's 97, the majority -- since 1991, the majority of those since the year 2000 -- many celebrated cases where people went to jail; the Barry Bonds case was celebrated as to contempt citation against reporters.

The number one case was the case of Judith Miller, who was kept in jail for 85 days for reasons still inexplicable to me. She was asked about the source of a leak on the outing of Valerie Plame. At the time, there was no national security issue because Ms. Plame did not qualify to make it a national security issue. And it was known who the source was, Rich Armitage, the deputy secretary of State, and yet she was kept in jail for 85 days, which led me to push the legislation we're pushing still.

The question I want to ask you -- and I understand that you're not in a position to make a final judgment, as you would if you were attorney general -- but this matter will be coming up. We are pushing it for floor action. And the question is on -- there is an exception for national security, and it is a matter of a judge to weigh whether the public interest in disclosure outweighs or does not outweigh the national security interest. And obviously there are issues on national security that are very complex, but in our system, it is up to judges -- federal judges to make decisions. They deal with a lot of very complex issues in many, many contexts, highly technical matters.

And I'd like to hear your views on the subject, and beyond that to ask you to study in detail as to whether that is a sensible combination because of the importance of news gathering, which has, in the history of our country, exposed corruption, misfeasance, malfeasance, waste, fraud and abuse. In the line of the famous Jefferson statement, "If I had to choose government without newspapers or newspapers without government, I'd take newspapers without government." But we intend to push this, and we'd like to reach an accommodation that satisfies the administration on the national security issue. What do you think?

MR. MUKASEY: First of all, I have my own history of having represented reporters, of having asserted the New York shield law successfully. And as you put it, it sounds almost innocuous. But I have some anxiety when it does -- when it comes to national security cases, because, although federal judges -- and I used to be one of those, too, and therefore I have high regard for them -- first of all, it is not always possible to show precisely what the outcome is going to be from disclosure of confidential information.

The instance I mentioned yesterday involving serving a list of unindicted co-conspirators is -- was one example. Another example is a piece of testimony that was given in the Ramzi Yousef case that was tried before my colleague, Judge Duffy, where somebody testified to somebody having delivered a cell phone battery to someone else.

That piece of testimony disclosed to al Qaeda that a line of communication of theirs had been compromised and in fact was a line of communication that our government was monitoring and from which it had gotten enormously valuable intelligence. That line of communication shut down within days of that testimony.

And I don't know what we lost. Nobody knows what we lost. But we probably lost something enormously valuable. What I'm saying is it's an imponderable.

Secondly, although federal judges decide complex and technical issues, when it comes to weighing intelligence, that's beyond simply complexity. They don't have available to them not only the training but the resources that people involved in, for example, the Department of National Intelligence, that the director of National Intelligence has available to him to weigh issues like that. They rely on their experience, their law clerks and what's submitted to them and their own common sense. That's enough in the mine run of cases because the worst thing that can happen is they'll make a mistake, it will go up on appeal, and as often happened to me, they'll get reversed. The stakes are much higher when it comes to national security. And often, even showing that -- of what the danger would be from the disclosure is itself as bad as the disclosure or worse.

Then you get to the entirely separate question of who is a journalist and who isn't, and we talked about that a little bit yesterday. So for those reasons, I've got misgivings about it.

I do not -- the case that you described -- there's an old saying that hard cases make bad law. The reverse may very well be true also; bad cases can make hard law. I don't want this to be a situation where a bad case makes a hard law.

SEN. SPECTER: Mr. Chairman, just one final comment.

I understand the problem you articulate, but I do not think that we can stop short and say that just an assertion by the federal government of national security ends the matter. That is just too much authority in too blanket a way. So I would ask that you help us search for a way to accommodate the concerns you express but at the same time give a shield to a reporter unless there is some very good reason not to.

Thank you, Mr. Chairman.

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SEN. SPECTER: Earlier this year the Office of Inspector General released an important report on the FBI's misuse of so-called exigent letters and National Security Letters. Some of the findings suggested that more inquiry was necessary in determining whether officials had knowingly approved FBI information requests containing false statements or improperly characterizing requests as emergencies to obtain records without legal process.

At first the OIG was going to merely allow the FBI to investigate itself. However, after this committee had a hearing, the OIG decided to conduct further investigation jointly with the FBI Inspection Division. While this is better than having no role for the inspector general, it seems that allowing the FBI to actively participate in an investigation of its own potential wrongdoing could be -- could undermine the credibility and public confidence in the final product by providing an opportunity for the FBI insiders to tamper with the investigation.

One, do you believe conducting joint investigations with the entity under investigation is consistent with the principle of inspector general independence?

MR. MUKASEY: I agree that having an agency investigate itself is generally not the optimum way to proceed. The one fact, as I understand it, that gives me pause here is that I believe that one of the preliminary conclusions that -- among the preliminary conclusions reached by the inspector general in his first report -- and I understand this is still under -- this matter is still under investigation, but a preliminary conclusion was that there were no controls in place, there was no monitoring in place, and that that was in part what led to the abuse; where a form that originated in one place where there were grand juries sitting was then sent around and nobody bothered to read the form, they used it and told people that they were to produce information for use by a grand jury when there was no grand jury -- which is inexcusable, I agree. But that what happened was that when they saw that report, the FBI did, as I understand it, put controls in place and monitoring in place.

And I think that given that that's been the response, that we ought to at least give those controls and that monitoring an opportunity to operate, and so their participation in the ongoing investigation is not perhaps as inappropriate as might at first seem.

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