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As I noted earlier, Mukasey indicated early in the hearing that the criminal investigation of the CIA's destroyed torture tapes may well explore whether the interrogation techniques shown on those tapes were legal. But as Mukasey made clear, that may or may not happen.

So Sen. Sheldon Whitehouse (D-RI) wanted to know, is the Department of Justice investigating whether the sorts of techniques used by CIA agents were torture? And if not, why not?

Well, they aren't. And as for the why not, he and Mukasey went round and round on the question for two rounds of questioning. Here's Whitehouse's second try:



In this and the other exchange it became apparent that there were two justifications for Mukasey's stance.

The first you might call the real reason. It's one he succinctly described earlier when he said "I [am not] going to call into question what people do or have done, when it's not necessary to do so."

The second rested on a legal argument that was seemingly less self-justifying -- but he had real trouble getting it to stand up under Whitehouse's questioning.

The main issue, he argued, was whether the proper "authorizations" were given.

Well, isn't Mukasey's emphasis on "authorizations" really the Nuremberg defense? Whitehouse wanted to know. "I had authorization and therefore I'm immune from prosecution?"

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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 “repugnant” 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:

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Sen. Dick Durbin (D-IL) picked up where Sen. Joe Biden (D-DE) left off. Does the attorney general really think that it depends on the circumstances when you can waterboard somebody?

Here's the video:



Durbin pressed the point that the Senate had, on a broad bipartisan basis, prohibited "such practices with the McCain amendment" (the 2005 Detainee Treatment Act).

But the Senate had also "voted down a bill that would prohibit waterboarding," Mukasey replied.

"You still think that the jury is out on whether the Senate believes that waterboarding is torture?" Durbin wanted to know.

"The question... is whether the Senate has spoken clearly enough in the legislation that it has passed...."

"Where is the lack of clarity in the McCain legislation?"

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Michael Mukasey finally got into the nitty gritty of how he thinks about torture, and he seemed to finally show his hand.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."



What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Marty Lederman blogs: "What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not 'cruel treatment' under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure)."

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

Update: Here's the transcript:

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Here's the most fruitful of the responses about waterboarding that the senators were able to elicit from Mukasey so far.

Sen. Ted Kennedy (D-MA) had a long wind up before delivering his punch. After detailing how objectionable waterboarding was, how it was clearly torture, as clearly as robbing a bank is stealing, he came out with: "Would waterboarding be torture if done to you?"



"I would feel that it was," Mukasey replied. But then he devolved into his practiced take which he detailed in his letter last night. He can't just come out and say that waterboarding is clearly torture when done to anyone, he says, "because of the office that I have." It was a brief moment of clarity.

Update: Actually, Mukasey's responses to two other questions, detailed above, proved even more clear.

Update: Here's the transcript:

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Michael Mukasey is not a man to live in the past. It's a much more difficult place.

Sen. Arlen Specter (R-PA) started his questions by asking about the President's Article II powers under the Constitution. Do you think that the President can break any law he pleases because he's the President -- including, say, statutes banning torture?

"I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids," Mukasey shot back.



"Well, he did just that when he violated the Foreign Intelligence Surveillance Act" Specter responded. "Didn't he?"

Well, "both of those issues have been brought within statutes," Mukasey responded, apparently hoping that he wouldn't have to discuss the stickier past.

"That's not the point," Specter pressed. "The point is that he acted in violation of statutes, didn't he?"

"I don't know," Mukasey conceded. Awkward.

"There's no dispute about that," isn't there? The law says you have to go to court to get a warrant for wiretapping and the administration didn't do that.

Mukasey then wound into a description of the alleged problems with FISA regarding foreign to foreign communications.

"But I'm talking about wiretapping U.S. citizens in the United States" Specter protested, before giving up, saying "Well, not getting very far there, let me move on...."

Update: Here's the transcript:

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So what's going on this morning with the surveillance legislation?

Here's a statement we've just gotten from Reid's office: "Currently discussions are ongoing in an effort to determine how to move forward on FISA. Senator Reid is closely working with all Democrats including Senators Feingold and Dodd on this issue."

That's another way of saying that he's not selling out on retroactive immunity, it seems. And no deal has been struck yet. We'll keep you updated as things develop.

In his first round of questioning this morning, Sen. Patrick Leahy (D-VT) asked a question that's been on everyone's mind: will the criminal investigation that's been launched into the destruction of the CIA's torture tapes also cover the techniques that were documented on those tapes?



Mukasey said, essentially, that it hasn't been ruled out. John Durham, the prosecutor who's been tapped to lead the investigation, he said, will proceed as in any other matter, "step by step." If "it leads to showing motive... then I'm sure it will be explored." He stressed again that Durham, an experienced prosecutor, was in charge (even if he's not completely independent) and that he's joined by an experienced FBI agent.

Update: Here's the transcript:

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Last night, the Senate also quickly passed that 15-day extension to the Protect America Act. So it seems like the President will likely sign that into law.

So what's next? In comments on the Senate floor this morning, Senate Majority Leader Harry Reid (D-NV) said that after holding a meeting in his office at 6 PM last night, he called Senate Minority Leader Mitch McConnell (R-KY). He indicated that they may have struck a deal on how to proceed, but it wasn't clear if all the details had been hashed out, and he didn't indicate what the details of that deal might be. We'll keep you updated as we learn more.

Update: See update here.

In a signing statement appended to the National Defense Authorization Act for 2008, President Bush asserted that he is not obliged to obey four key sections of the bill because they trample on his executive authority. One provision that Bush's statement targets precludes the the use of taxpayer money "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq." (Boston Globe)

Barack Obama's (D-IL) presidential campaign announced last night that it will give to charity over $70,000 in contributions linked to Antoin Rezko, the Chicago developer due to begin trial next month for corruption. The campaign said it discovered the money after it undertook a more extensive review of Rezko-related contributions. (AP)

Civil Rights groups have called upon Attorney General Michael Mukasey to rescind a Department of Justice opinion that authorized an administration scheme by which registered Republicans switch their affiliation to "independent" so that President Bush can stack the bi-partisan, eight person Civil Rights Commission with political allies. Citizens for Responsibility and Ethics in Washington (CREW) and the Leadership Conference on Civil Rights (LCCR) are leading the effort to have a Bush memo, which laid the foundation for the end run around the Civil Rights Act of 1957, rescinded. (CREW)

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