We know what Attorney General Michael Mukasey thinks about investigating the CIA’s use of waterboarding. Not gonna do it.
And that’s precisely what he said in a letter to Sen. Dick Durbin (D-IL), who’s been hounding him on the issue, yesterday (you can read Mukasey’s letter here). But Durbin thinks that Mukasey is missing the point. He writes:
…I did not request nor suggest that those who relied on the Justice Departmentâs advice should be investigated. Rather, as I said in my letter, âa Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the lawâ (my emphasis).
In other words, Mukasey’s responses have been focused on whether the CIA agents (and possibly contractors) who carried out the waterboarding should be prosecuted. But Durbin says the emphasis should be on those who authorized the activity. He explains: “Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law.”
And accordingly, Durbin writes that he will ask the Justice Departmentâs Inspector General and the Office of Professional Responsibility “to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful.” You can read Durbin’s letter in full below.
A similar investigation was launched in January, 2006 into whether the Department had properly reviewed the administration’s warrantless wiretapping program; Bush ended it just as quickly as it began, however, by denying investigators the necessary security clearances. Shortly after Mukasey took office, that investigation started up again.
Durbin had demanded answers to a number of outstanding questions from Mukasey and said that he would hold the nomination of Mark Filip as deputy attorney general until he got them. Since Mukasey responded, he writes, he will release his hold on Filip’s nomination.
February 7, 2008
The Honorable Michael Mukasey
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Attorney General Mukasey:
Thank you for your prompt response to my February 5th letter. I am disappointed in your response, but, as promised, I will lift my objection to the nomination of Judge Mark Filip to be Deputy Attorney General.
I want to take this opportunity to respond to several points in your letter. Although Central Intelligence Agency Director Michael Hayden admitted this week that the CIA has engaged in waterboarding and you testified last week that, âThere are circumstances where waterboarding is clearly unlawful,â you say you will not open an investigation because the Justice Department informed the CIA that it would be lawful to use waterboarding. Your justification is that, âno one who relied in good faith on the Departmentâs past advice should be subject to criminal investigation for actions taken in reliance on that advice.â However, I did not request nor suggest that those who relied on the Justice Departmentâs advice should be investigated. Rather, as I said in my letter, âa Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the lawâ (my emphasis).
Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law. In response to a recent letter I sent you, Principal Deputy Assistant Attorney General Brian Benczkowski said that the Justice Department âhas not had occasion to consider whether âcommand responsibilityâ as defined in your letter is a theory under which an individual may be criminally prosecuted under the Torture Statute.â Your acknowledgement that the Justice Department informed the CIA that waterboarding would be lawful presents such an occasion.
There clearly is sufficient information to warrant a preliminary inquiry and/or criminal investigation into whether those who authorized waterboarding violated the law. The Attorney Generalâs Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations, which were signed by then Attorney General John Ashcroft in 2002 and remain in effect, state, â[A] preliminary inquiry  should be undertaken when there is information or an allegation which indicates the possibility of criminal activity and whose responsible handling requires some further scrutiny beyond checking initial leads.â Moreover, during last weekâs Senate Judiciary Committee hearing, in the context of discussing the Justice Departmentâs investigation of the CIAâs destruction of detainee interrogation tapes, you explained the low threshold for a criminal investigation: âWhen that preliminary inquiry showed some reason–some reason–to believe that some statute may have been violated, which is a very low standard, itâs well below probable cause, when that was met, that low bar, we were required to, and did, begin a criminal investigation.â In light of your conclusion that waterboarding is unlawful in some circumstances, CIA Director Haydenâs admission that the CIA used waterboarding certainly indicates at least âthe possibility of criminal activityâ and âsome reason to believe that some statute may have been violated.â
Nonetheless, you have indicated that you will not investigate this matter. Therefore, I will ask the Justice Departmentâs Inspector General and the Office of Professional Responsibility to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful. As you know, a similar investigation is underway regarding Justice Department officials who advised the National Security Agency that its warrantless surveillance program is lawful.
I am also disappointed that you do not intend to fulfill your commitment to me to review all Office of Legal Counsel (OLC) opinions regarding surveillance, interrogation techniques, and detention standards. Prior to your confirmation, I asked you, in writing, âIf you are confirmed, will you pledge to review personally all OLC opinions regarding surveillance, interrogation techniques, and detention standards to determine whether each of these opinions can be provided to Congress and to determine whether the legal analysis and conclusions of each of these opinions is correct?â You responded, in writing, âYes.â However, at last weekâs hearing you acknowledged that you had not reviewed all of these opinions. In your letter to me today, you state, âI have no occasion to review any prior advice provided by the Department on waterboarding, or any other technique that is not currently authorized for use in the CIA program.â
In response to my question about Steven Bradburyâs continued service as the head of OLC, you said, âMr. Bradbury is an exceptional lawyer who has served the Department and the Nation admirably during his tenure in the Office of Legal Counsel.â Since you have only served as Attorney General since November 9, 2007, and you refuse to fulfill your commitment to review all OLC opinions regarding surveillance, interrogation techniques, and detention standards, it is unclear how you can make such a sweeping conclusion about Mr. Bradburyâs tenure at OLC. I am particularly concerned that you apparently have not reviewed an opinion, reportedly authored by Mr. Bradbury, on so-called âcombined effects,â which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The New York Times, then Attorney General Alberto Gonzales approved this opinion over the objections of then Deputy Attorney General James Comey, who said the Justice Department would be âashamedâ if the memo became public.
I agree with you that our intelligence professionals should be able to rely in good faith on the Justice Departmentâs legal advice. However, CIA agents have been put in jeopardy by misguided counsel from the Justice Department, including legal opinions that the Administration has been forced to repudiate. Your refusal to review these opinions, much less investigate those who authorized waterboarding, places CIA agents at risk of receiving similarly flawed advice in the future. Moreover, your continued refusal to repudiate waterboarding does tremendous damage to Americaâs values and image in the world and places Americans at risk of being subjected to waterboarding by enemy forces
Richard J. Durbin