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

Statement

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SEN. EDWARD KENNEDY (D-MA): Thank you, thank you very much, Mr. Chairman.

General Mukasey, I want to, at the outset, commend you for taking a number of positive steps. Investigate the destruction the CIA interrogation programs. You know, you know, including launching a full-scale criminal investigation, moving the investigation out of the main Justice, accepting the recusal of the eastern district of Virginia's U.S. attorney's office, appointing John Durham, a seasoned, respected prosecutor, making the FBI the lead investigative agency. Each of these steps show a sensitivity to potential conflicts of interest and a desire for a meaningful investigation. I'm troubled you decided not to make Mr. Durham an independent counsel and ensure against even the appearance of impropriety.

I hope I have an opportunity to return to this subject later on.

But I want to focus on two issues in the time that I have, and I'll submit some other questions. One is on the waterboarding, and the other is about the Civil Rights Division and voting that I'm very much concerned about.

In the issue, as you know, on the -- waterboarding has become the worldwide symbol for America's debate over the torture and became the centerpiece of your confirmation hearing after you refused to take a position whether it's lawful. In fact, even though you claim to be opposed to torture, you refused to say anything whatever on the crucial questions of what constitutes torture and who gets to decide the issue. It was like saying that you're opposed to stealing but not quite sure whether bank robbery would qualify.

So the courts and military tribunals have consistency, and they agreed that waterboarding is an unlawful act of torture, but you refused to say so. And then in a letter to the committee, sent last night, you once again refused to state the obvious: that waterboarding has been, continues to be an unlawful act of torture. Your letter told us that the CIA does not currently use waterboarding, but the fact -- that fact had already been disclosed. What your letter completely ignored is the fact that the CIA did use waterboarding, and no one is being held accountable.

In your letter you wouldn't even commit to refuse to bring waterboarding back, should the CIA want to do so. You wouldn't take waterboarding off the table. Your letter also ignored the fact that the CIA continues to use stress positions, extreme sleep deprivation, other techniques that are every bit as abusive as waterboarding -- techniques that our own Department of Defense has rejected as illegal, immoral, ineffective and damaging to America's global standing and safety of our own servicemen and -women overseas.

So I won't even bother to ask you whether waterboarding counts as torture under our laws, because I know from your letter that we won't get a straight answer. So let me ask you this. Would waterboarding be torture if it was done to you?

ATTY GEN. MUKASEY: I would feel that it was.

There are numerous -- I remember studying Latin in school, and one of the people I studied was Cicero, and Cicero used to -- when he made speeches, would list all the things he was going to pass over without mentioning, and then he would pass over without mentioning them, and a lot of that is in your question. You say I'm going to pass by this and not ask you about it, and pass by that, not ask about it.

There are numerous things that I would differ with. You say that waterboarding is obviously torture, and you use the example of taking something -- bank robbery obviously being stealing. That assumes, of course, the answer to the question, which is that waterboarding is in fact torture, just the same way that bank robbery is in fact stealing.

I think there are numerous other things that I would argue with. I simply point out that this is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed, and have differed within this chamber. During the debate on the Military Commissions Act, when some people thought that it was unnecessary, some people thought that it obviously barred waterboarding, other people thought that it was so broadly worded that it would allow anything, and there were expressions on both sides.

I should not go into, because of the office that I have, the detailed way in which the department would apply general language to a particular situation, notably when I'm presented only with a question that tells me only part of what I would be asked to rule on, if I were ever asked to rule on.

SEN. KENNEDY: Well, let me -- as you know, the director of National Intelligence, Admiral McConnell, stated, "If I had water draining in my nose, oh, God, I just can't imagine how painful. Whether it's torture by anybody else's definition, for me waterboarding would be torture."

Now, let me -- you say facts and circumstances. Let me ask you, under what facts and circumstances exactly would it be lawful to waterboard a prisoner?

ATTY GEN. MUKASEY: For me to answer that question would be for me to do precisely what I said I shouldn't do, because I would be, number one, imagining facts and circumstances that are not present, and thereby telling our enemies exactly what they can expect in those -- in those eventualities. Those eventualities may never occur.

I would also be telling people in the field, when I'm not faced with a particular situation, what they have to refrain from or not refrain from in a situation that is not performing, and in situations that they may find analogous. I shouldn't do either one of those.

SEN. KENNEDY: Let me ask, then, finally: Are there any interrogation techniques that you would find to be illegal, fundamentally illegal?

ATTY GEN. MUKASEY: There are statutes that describe specifically what we may not do. We may not maim. We may not rape. There is a whole list of specifically barred techniques.

SEN. KENNEDY: But waterboarding isn't on that list.

ATTY GEN. MUKASEY: It's not.

SEN. KENNEDY: Okay. Let me go to another issue. It's been reported now that the Department of Homeland Security received 1.4 million naturalization applications between October '06 and September '07. Over the past year, the naturalization backlog has increased from six months to 18 months. This is troubling. Significant number of potential U.S. citizens filed their naturalization hoping to vote in the upcoming November election. Thousands of applicants have been left in limbo.

Basic fairness dictates that these naturalization applications are processed in time to allow these individuals the chance to participate in our democracy.

Fees have been increased. The administration hasn't asked for any additional kind of help and assistance to do it. All they have told us is the line is growing longer and longer and longer and longer, and there are going to be hundreds of thousands of people who are qualified to be citizens and vote that will not vote.

What will the Justice Department do about it?

ATTY GEN. MUKASEY: Well, as you point out, the question of processing immigration applications is within the jurisdiction of the Department of Homeland Security. That said, the Justice Department has done and is going to continue to do everything it can to make sure that everybody who is authorized to vote can vote. We have monitors going out to polls to make sure that people who are authorized to vote can vote. We have brought cases challenging --

SEN. KENNEDY: Well, just on this, General, because time is up. What is the department doing to give a sense of urgency to the other -- Department of Homeland Security to move ahead on this, to make sure that they're not going to -- individuals are -- that are otherwise eligible are not going to be excluded from the -- participating? I mean, it's all good -- we're talking about suppression and all the rest when you got hundreds of thousands of people are going to be denied. It seems to me that we're not dealing with the fundamental issue.

ATTY GEN. MUKASEY: I will admit to you, candidly, that I don't know what the contacts are --

SEN. KENNEDY: Would you work with us -- would you --

ATTY GEN. MUKASEY: I will do two things. Number one, I will find out what the contacts have been, if any; and number two, I will work with you.

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