Michael Mukasey is attorney general in large part due to Sen. Chuck Schumer’s (D-NY) support. And in his questions today, Schumer started by commending a number of Mukasey’s actions (restarting the OPR investigation into the warrantless wiretapping program, tapping a well-qualified prosecutor to investigate the CIA tapes’ destruction), but then said that he was “disappointed” in Mukasey in other ways. And he tried his best to give Mukasey a hand and pull him out of the swamp.
His question was simple. You’ve said that waterboarding is “repugnant.” So, if it is repugnant, don’t you think that a ban of waterboarding is a good thing? Wouldn’t you support that?
Mukasey didn’t take Schumer’s hand. He said he’d need to mull it over. Here’s the video:
Schumer was unhappy. “You have already stated something to be repugnant… Why could something ârepugnantâ not be outlawed?”
“Senator, I don’t want to trivialize the question,” he replied, “but I’ll refrain from naming all the other things that I find repugnant.” Whether something is repugnant to him, he said, is not a good basis for whether it should be outlawed. “I want to analyze it as a policy matter.” He said that he didn’t want to put his own “personal tastes” into his office; he wanted to hear everything there was to hear about it from all his advisers. Before that time, he couldn’t say.
“I have to tell you how profoundly in this particular situation I disagree with you,” Schumer closed.
Update: Here’s the transcript:
SCHUMER: Thank you, Mr. Chairman.
Judge Mukasey, I want to welcome you to your first oversight hearing as attorney general. In many ways, both good and bad, you are the type of attorney general I expected you to be when I voted for your confirmation.
On the good side, you have acted decisively in several ways to clean up some of the stench of politics and ideology at the Department of Justice. You allowed no P.R. investigation to continue that had stalled under Attorney General Gonzales. As Senator Kennedy noted, you launched a full-blown investigation into the CIA tapes with a good prosecutor.
You reinstituted rules limiting contacts between the White House and the Justice Department. You recalled a much-criticized U.S. attorney in Minnesota to Washington. Made good on your promise to Senator Feingold to address the question of equal access to DOJ facilities by gay and lesbian groups.
And it seems in many ways there to be, at least, a beginning of the return of morale at the department.
So on issues where I expected you would be a good attorney general, you have largely been. On other issues, however, especially related to executive power and torture, I never expected your views to be mine. And, in fact, they differ dramatically from mine, those of many of the members of this committee, many experts and a majority of the American people.
Nonetheless, I thought there was a hope — not large — that you just might rise to the occasion. So I’m not surprised with your testimony, but I do remain disappointed.
And I’d like to talk to you about that issue, the issue of waterboarding.
Now you’ve had a chance to further educate yourself about coercive methods of interrogation. Having done that, do you still find the method of waterboarding described in our October letter repugnant, as you stated in the letter back to us?
MUKASEY: As a personal matter, yes.
SCHUMER: That’s how you stated it.
MUKASEY: Yes, I do.
SCHUMER: Yes, OK.
Now, separate from the pure legal question, which is what we’ve talked about mostly here today, given that the method is repugnant to you, do you support a ban on waterboarding, whether by statute or executive order?
As you know, there is such a statute that Senator Feinstein — I was a co-sponsor of it — has in the — was very good at putting in the intelligence authorization. I think it’s now in the intelligence conference, so it’s going to come close.
So do you support — let me repeat that. This is not asking the legality.
SCHUMER: Do you support a ban on waterboarding, whether by statute or executive order?
MUKASEY: There are two parts to that.
One part, as a general matter, as a matter of principle, I don’t — and I try to avoid, I tried it when I was a judge, I try it — I try to do it now — I try to avoid using the blank canvas of either existing laws or proposed laws on which to paint my own moral tastes and my own beliefs as to whether something is repugnant or not, passing that.
The question of whether waterboarding should be outlawed or shouldn’t be outlawed is a question on which other people own a substantial part of the answer. Notably, the people involved in gathering intelligence, using intelligence, processing intelligence, explaining our position abroad — that is, the State Department, which does, by the way, a superb job of it. All of those people have to be heard.
SCHUMER: Judge, we know that.
MUKASEY: OK.
One of the things, though, that I would want to do before expressing my own view — as the junior member of the entire assemblage I’ve just named — is hear them.
SCHUMER: You know — OK. I really — that is not up to your usual standard of answer here.
I didn’t ask you — I know you’d want to hear from a whole lot of people and stuff, but you’ve already stated something to be repugnant. I’m asking you, one of your roles as attorney general is not simply a decider of what’s legal or not legal — that’s your most important function — but it’s an adviser on policy.
Now, I find it hard to understand how you personally, when asked for advice, would not be able to say that something that’s repugnant should be outlawed.
I mean, I’m asking you the hypothetical, not of what existed three years ago, and not what even exists today. You stated what exists today. I’m asking you — there’s a statute. It’s not an irrelevant question. You’re likely to be asked the question if you haven’t been already.
There’s a statute that’s likely — very likely to get to the president’s desk. And I’m just asking you, in terms of the advice you would give the president, your own personal view, whether by statute or executive order, should waterboarding be outlawed, period.
You said it’s repugnant. I don’t understand how you can now say: Well, I have to ask a whole lot of other people. I’m asking you your view.
MUKASEY: Senator, I don’t want to trivialize the question, and so, I’m going to refrain from telling you all the other things that I find repugnant.
But suffice it to say that whether something is or isn’t repugnant to me, taken it by itself, isn’t the basis for my recommendation about whether it ought to be outlawed.
I want to hear from other people. I want to hear other views. I want to analyze it as a policy matter. I want to be able to imagine, if I can, all of the facts and circumstances in which the question might arise…
SCHUMER: Now, when you have…
MUKASEY: … with the assistance of the people, the talented people that I have at the Justice Department.
SCHUMER: When you had the discussion, I think with Senator Biden and then Senator Durbin, you were talking about a standard. And you’d have to see the fact situation meet the standard.
You didn’t say that to us. You didn’t say waterboarding is sometimes repugnant, or might be in certain circumstances repugnant. You said it’s repugnant. You didn’t have any qualifiers. And…
MUKASEY: The qualifier was, to me.
SCHUMER: Yes.
MUKASEY: That’s a big qualifier.
SCHUMER: So, I just find it — you have an opportunity here to be something of a leader, I guess, and you are going to be asked whether we should pass a law. This does not get into the conundrum of what to do about the past, which I know you wrestle with.
But we have an opportunity not to simply say, “This time, there won’t be waterboarding,” but it’s the policy. We all know that the military has made it its policy. We all know that, you know, there are all kinds of experts in the same sort of — in a more difficult situation than you on the battle field who say it should be outlawed.
You find it repugnant, and yet, you can’t say that it’s your view there ought to be a law to outlaw it? And that doesn’t put into jeopardy any of the people you are — you know, the supervising, I guess, in a broader sense.
MUKASEY: When I was a judge, I was not a settling judge, because, to me, it posed the danger of taking the authority of my office and putting my personal taste into it and putting my thumb on the scale one way or the other.
I’m now the attorney general. And for me to take my personal reaction to something and put the authority of that office on the scale, when I haven’t heard all of the things I’ve told you I think I have to hear, is, to me, just as big a mistake, and for a lot of the same reasons.
SCHUMER: … how profoundly, in this particular situation, I disagree with you.
MUKASEY: I’m happy to hear that I lived up to expectations. I’m very sorry to hear that I lived down to them.
