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Mukasey: No, I Will Not Investigate Warrantless Wiretapping

NADLER: Mr. Attorney General, I was interested to hear you say a moment ago that if the president ordered someone to do something against the clear intent of Congress, that's outside the law.

The FISA act said a person is guilty of an offense if he intentionally, one, engages in electronic surveillance under the color of law, except as authorized by statute.

Now, the president admitted that he did that. Every 45 days he signed an authorization to direct the surveillance of people in the United States without a warrant as required by the FISA act.

Now, I had previously asked your predecessor, Attorney General Gonzales, given this apparent prima facie case that the president and people under him, including the prior attorney general, engaged in felonious conduct by doing so, that he appoint a special counsel to investigate the warrantless surveillance of Americans.

And I recently reiterated that request to you.

Now in your testimony before the Senate last week, you responded to Senator Leahy's questions on whether the president violated the law by authorizing wireless surveillance by stating that you, quote, "don't know whether the president acted in violation of statutes," unquote, including FISA.

I believe we need to know the answer: Did the president, with, as has been reported, the advice of the Justice Department, break the law?

I believe the answer is clear that he did.

Given the extraordinary circumstances involved, allegations of criminal conduct by the president and other high-ranking officials and the possibility of conflict at the Justice Department, will you now agree to appoint outside special counsel so that we finally will get an answer to this question?

MUKASEY: The direct answer to your question is no, I will not.

NADLER: Because?

MUKASEY: Beg pardon?

NADLER: Because?

MUKASEY: Because -- because there is one detail that was omitted, and it may very well have been my fault in saying I didn't know when I'd forgotten or overlooked.

There was in place an order -- I'm sorry, an opinion of the Justice Department describing the legal basis for the program to which you refer. That included the authorization of the use of military force, as a congressional statute on which it was relied that that behavior was legal.

I understand that there are views on both sides of that -- strong ones.

NADLER: Well, there are views -- let's put it this way: The Supreme Court in the Hamdan case, in a case just about directly on point, ruled that -- for reasons I'm not going to get into now, we don't have time in five minutes -- that the use of the two excuses by the Justice Department, namely the president's inherent powers under Article II and the authorization for the use of military force as justification, was not, in fact, justification. The president is still bound by the law. The law was not repealed by implication by the AUMF and that that's not sufficient.

Now, the Justice Department, in a letter to congressman -- to congressman, excuse me -- to Senator Schumer recited these letters as a refutation by a host of constitutional scholars against that.

My second question, then, when this is -- on behalf of the Justice Department, in effect representing the president, although a step removed, you say that this is justified, that it's not illegal, for the reasons stated.

NADLER: Lots of other people say it's clearly illegal.

Normally, we would have that settled in a court. A court would decided whether something's legal or not when there's a dispute.

But when you attempt to get this into court -- you can't get it into court by prosecution, because you're not going to prosecute or appoint the special counsel. But when you attempt to get it into court by victims or alleged victims, plaintiffs suing in civil court, then the government comes out and says, "Oh, you can't get into court alleging violation of your rights through violation of FISA because of the state secrets privilege."

So now you've set up a situation where the president and the attorney general assert the president's right to do something which seems to a lot of people to a lot of people to be a violation of law and there is no way of checking that.

In other words, there's no way of getting -- well, let me ask you a different question. Under this, is there any way -- and would you agree that the state secrets privilege has to yield because otherwise there is no way for Congress or the courts or anybody to have any check on the president's claimed power?

MUKASEY: The state secrets privilege -- just to answer the last question first -- the state secrets privilege is invoked by the government and backup is provided for its invocation.

To my knowledge, that backup has been sustained...


NADLER: Well, the state secrets privilege has often been used where there's no backup provided, simply an affidavit.

Would you agree that where the state asserts state privilege -- state secrets, that the court ought to be provided with information in order to rule on the validity of the state secrets privilege?

MUKASEY: The court can be provided with and is provided with information relating to the invocation of the state secrets privilege and an explanation of the basis for it, and to rule on that basis.

NADLER: But the court often rules with -- simply on an affidavit without seeing the documents to judge for itself whether they deserve -- whether they would threaten national security were they revealed.

Would you agree that the court ought to see that and make that decision?

MUKASEY: I believe that courts see affidavits in some cases, affidavits and documents in others, and have what they consider to be an ample basis because they rule on that basis for a ruling.

MUKASEY: Sometimes things are quite clear.

NADLER: And sometimes they're not.

MUKASEY: And sometimes they're not.

NADLER: And, lastly, we have heard hearings in this committee on rendition -- on so-called extraordinary rendition. On the Maher Arar case we're going to hold further hearings.

Would you -- and we've been told that we got assurances from Syria that Mr. Arar would not be tortured when he was sent there, which of course proved not to be true.

Would you commit or agree that upon request, which will be forthcoming, that you will send someone from the department for a hearing here to answer the questions, "Who obtained these assurances? From whom were they obtained? What assurances were given?" so that we can get to the -- begin to get to the bottom of this rather horrendous case?

MUKASEY: It's my understanding that some of this has been the subject of classified briefings to various members of this committee and other committees.

It's also my understanding -- and this is based on an exchange of notes between us and Canada that became public, not because of anything that anybody wanted to do voluntarily -- that Mr. Arar is still on the no-fly list.

NADLER: Yes, he is; improperly so, in my opinion.

MUKASEY: Beg pardon?

NADLER: I've seen...

CONYERS: The gentleman's time may have expired.

NADLER: Let me just say, I've seen the confidential documents. He shouldn't be on the no-fly list. But we have not heard about the assurances from Syria, even on a classified basis. We need to know that.