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KENNEDY: 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 to investigate the destruction of the CIA interrogation programs, you know, including launching a full-scale criminal investigation, moving the investigation out of main Justice, accepting the recusal of the Eastern District of Virginia's U.S. attorney's office, appointing John Durham, a seasoned and 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'll 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 on 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 consistently agreed that waterboarding is an unlawful act of torture, but you refuse to say so.
And then in a letter to the committee you'd sent last night, you once again refused to state the obvious, that waterboarding has been and 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.
KENNEDY: Your letter also ignored the fact that 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 service men 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?
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 it.
KENNEDY: Well, let me -- let me -- as you know, the director of national intelligence, Admiral McConnell said, "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?
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 -- 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.
KENNEDY: Well, let me ask then, finally, are there any interrogation techniques that you would find to be illegal -- fundamentally illegal?
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.
KENNEDY: But waterboarding isn't on that list.
MUKASEY: It's not.