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?”
MUKASEY: No, it’s — I had authorization, and let’s take a look at the authorization, at the circumstances under which it was given, at what was done, at a whole wide range of variables that I don’t have before me.
WHITEHOUSE: Has that been done?
Has there been a thorough, independent analysis, under your administration, of whether or not any national of the United States is potentially in violation of Section 2340(a), as a result of…
MUKASEY: I don’t start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now.
The two kept circling back to that same point. And the reason that the Department had launched an investigation into the destruction of the CIA tapes, he said, was that somebody had “destroyed tapes, apparently without proper authorization.”
When Whitehouse painted Mukasey into his corner on this question, saying again that it was the “Nuremberg defense,” Mukasey returned to his insistence that he wouldn’t speculate without the facts before him. As he had a number of times, Mukasey declared that it wasn’t clear that there was any reason for an investigation into possibly illegal torture. Whitehouse, incredulous, who sits on the intelligence committee and therefore has been briefed on the techniques, told him that was silly. All you had to do was read the newspapers, he said.
But Mukasey said that he’s not going to look at past actions. And here we return to the real reason. That’s the past, and to investigate what CIA agents did under prior authorizations (i.e. past legal opinions from the Justice Department), he said, would be to send a message:
…the message [to CIA agents] is, your authorization — you, who did whatever you did — your authorization is good only for so long as the tenure as the person who gave it, and maybe not even for that long.
It’s good as long as it’s current; as long as it’s within the limits that are recognized in the debate that’s currently going on; as long as the political winds don’t start to blow in the other direction.
He added later: “It’s a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don’t think that ought to be the message.”
Update: Here’s the transcript for Whitehouse’s first round of questioning:
WHITEHOUSE: Thank you, Mr. Chairman.
Attorney General Mukasey, referring to your January 29 letter, that we received yesterday, it strikes me that, in its mode of analysis, you have assumed the role, in essence, of, sort of, a corporate counsel to the executive branch.
The steps it takes are to ensure that there is no law-breaking currently going on. But the letter is unwilling to look back, as a corporate counsel might be unwilling to look back and dredge up past unpleasantness and risk potentially creating liability for the corporation.
I can see the role for that kind of analysis in a corporate context, but it strikes me that you are not just the corporate counsel to the executive branch.
WHITEHOUSE: You are also a prosecutor. You are the top law enforcement officer of the United States.
And prosecutors do look back. Prosecutors do investigate things that have happened in the past. They do dredge up the past in order to do justice.
And it’s the mission statement of the Department of Justice, to seek just punishment for those guilty of unlawful behavior.
The famous decision of a Berger v. the United States emphasizes the duty of the U.S. government, a sovereignty whose interest is that justice shall be done. It is as much your duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Now, the president has said that we will investigate and prosecute all acts of torture. And you just said today if someone is guilty of violating the laws of the United States, they get prosecuted.
If you look at the United States Code, Section 2340a on torture: “Whoever outside the United States commits or attempts to commit torture shall be fined under this title, or imprisoned not more than 20 years, or both.
“And if death results from any person from conduct prohibited by this subsection shall be punished by death, or in prison for any term of years, or for life.”
There is jurisdiction over the activity prohibited, if the alleged offender is a national of the United States, and a person who conspires to commit a offense under this section is subject to the same penalties, other than the penalty of death, as the penalty is prescribed for the offense.
So we have a statute on point. You are, I believe, the sole prosecuting authority for the statute, correct?
MUKASEY: I am…
WHITEHOUSE: The Department of Justice is.
MUKASEY: … at the top of the Department of Justice, which is the sole prosecuting authority.
WHITEHOUSE: In reference to your letter, and in your prosecutor’s responsibility — not your advisory — you have two hats: you advice the administration, you’re sort of the corporate lawyer to the administration, you’re also a prosecutor.
In the prosecutor’s hat, could you tell me in what way, looking back, is there an absence of concrete facts and circumstances about waterboarding to even look at whether this statute should apply? Where is the absence of concrete facts and circumstances in the events of the past?
MUKASEY: First, let’s talk about how many hats I wear. I wear one hat. It says attorney general of the United States. There are a number of duties under that, but as far as I’m concerned, there is no divided responsibility or divided loyalty; there is one responsibility.
WHITEHOUSE: All right. Well, let’s talk about the two duties in the terms of one providing advice to the administration in the same way that a corporate counsel provides advice to a corporation…
MUKASEY: When it comes — when it comes — when it…
WHITEHOUSE: … and being an independent prosecutor whose job is to look at the criminal laws and enforce them.
MUKASEY: When it comes to past conduct, one of the many questions involving past conduct, in addition to what was done, is, what authorizations were given, what authorizations were reasonably relied on?
My current evaluation of the statute, if there is one, has only tangentially to do with that, because if it has directly to do with that, then the message is, your authorization — you, who did whatever you did — your authorization is good only for so long as the tenure as the person who gave it, and maybe not even for that long.
MUKASEY: It’s good as long as it’s current; as long as it’s within the limits that are recognized in the debate that’s currently going on; as long as the political winds don’t start to blow in the other direction.
(CROSSTALK)
MUKASEY: That’s a message that I’m not going to send.
WHITEHOUSE: The message you send, otherwise, is that “I was only following orders” is a fine response.
MUKASEY: It’s not a fine response. It was a response, at Nuremberg, that was found unlawful, as we both know.
WHITEHOUSE: And yet it’s the one that you’re crediting right now, “I had authorization and therefore I’m immune from prosecution.”
Isn’t that where that analysis leads…
MUKASEY: No, it’s — I had authorization, and let’s take a look at the authorization, at the circumstances under which it was given, at what was done, at a whole wide range of variables that I don’t have before me.
WHITEHOUSE: Has that been done?
Has there been a thorough, independent analysis, under your administration, of whether or not any national of the United States is potentially in violation of Section 2340(a), as a result of…
MUKASEY: I don’t start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now.
WHITEHOUSE: Well, it just strikes me as odd that — where the question of whether the taping, the destruction of the taping of an interrogation was a criminal act is at issue, there we have a counsel geared up to look at that question and make a solid determination of whether or not laws were violated.
But whether the underlying interrogation was itself a criminal act is not entitled to examination or investigation. Isn’t that worth at least examination or investigation?
MUKASEY: I don’t know that that’s what I said. But the way that started was that we were told that there was a destruction. And a preliminary inquiry was made.
When that preliminary inquiry showed some reason — some reason — to believe that some statute may have been violated, which is a very low standard — it’s well below probable cause.
When that was met, that low bar, we were required to, and did, begin a criminal investigation.
WHITEHOUSE: Shouldn’t that apply? There is evidence that there was an interrogation in this. There is a statute on point that could very well be applied.
If the bar is low, isn’t worth taking a look at? Who was taking a look at this?
MUKASEY: You (inaudible) one point when you say that there was evidence that there was an interrogation. Evidence of an interrogation and evidence of a crime are two different things.
WHITEHOUSE: The way you said it was there was evidence of a destruction. The destruction could or could not be a crime, depending on how facts apply to law. The interrogation could or could not be a crime, depending on how facts apply to law.
There really isn’t a principle distinction between these two.
MUKASEY: I think there’s a principle distinction when the head of the CIA tells you that somebody destroyed tapes, apparently without proper authorization, which is what he disclosed.
WHITEHOUSE: And so, I don’t see how that gets you anywhere — I don’t see how…
MUKASEY: When all that started — all that started was a preliminary inquiry, and a preliminary inquiry showed the possibility that a crime was committed, and then we started an investigation.
WHITEHOUSE: I don’t see how that resolves the Nuremberg defense problem.
If the reason that you’re giving us for investigating the destruction of the tapes but not investigating the underlying interrogation is that it appears that the interrogators were following orders, and it appears that the destroyers were not, isn’t that the Nuremberg defense?
MUKASEY: No, because you’re assuming what was on the tapes. You’re assuming that the interrogation was unlawful.
WHITEHOUSE: I’m not assuming any such thing anymore than you would be assuming that the destruction was unlawful. What I’m suggesting is that you should investigate it and there should be at least somebody who at least takes a look at this in a principled, thoughtful way.
And if the answer comes back is, “No, there was not a crime, and here’s why,” then we can lay the question to rest.
WHITEHOUSE: But if what you’re telling me is that this hasn’t even been investigated, although the destruction of the tapes is being investigated, it strikes me that there’s a split standard there, and I’m trying to understand why.
MUKASEY: It seems to me that since there is an ongoing investigation into the destruction of the tapes, that may well disclose what was on them. And it may also well disclose whether it was anything further to be investigated. I think we ought to await that.
WHITEHOUSE: The theory — have I used my time?
LEAHY: You have.
WHITEHOUSE: I apologize. I will desist.
And here’s the transcript for Whitehouse’s second round of questioning:
WHITEHOUSE: Thank you, Mr. Chairman.
Thank you, Attorney General.
I guess I’m trying to sort of sort out the process question related to the determination of whether waterboarding is torture. In terms of your advisory responsibilities to the government, you’ve said you’re not going to engage those because there is not a set of concrete facts or circumstances that necessitate a determination because you’ve disclosed to us that waterboarding is not part of the CIA’s enhanced interrogation technique regime.
That still leaves open this question whether under 2340(a), which uses the term torture specifically in the statute, there are concrete facts and circumstances that would necessitate or justify an analysis toward that purpose. Given that the concrete facts and circumstances justification evaporates in terms of 2340(a) in that there, arguably, whatever it is, it is, and you can go back and find it. It’s as concrete as the past ever is.
I’m trying to determine if that is taking place, the analysis, if you are waiting, as you suggested, for John Durham’s investigation to look more into what happened, and then it would kick off from that, once the preliminary determination were made, or if there has been a policy determination made that because there has been a claim of authority, there will be no analysis, there will be no investigation, there will be no determination, or some fourth category.
What is the process for coming to this decision vis-a-vis 2340(a)?
MUKASEY: The process for coming to any determination under any criminal statute is that facts come to the attention of the department that warrant an investigation.
MUKASEY: As of now, so far as I’m aware, John Durham’s investigation is into the destruction of the tapes. That may very will engage the question of what was on the tapes, if what was on the tapes was something that is barred by the torture statute — that is…
WHITEHOUSE: Couldn’t you and I, but for the non-classified nature of this particular setting, engage in a very concrete and factual discussion about subject matter that would at least give cause for inquiry?
MUKASEY: We could engage in a discussion. It would not be a concrete and factual discussion because we would be talking about, “If this, if that, if the other.”
And we would…
WHITEHOUSE: In a classified setting.
MUKASEY: In a classified setting. That’s all we would be talking about.
WHITEHOUSE: It may or may not be if.
Beg your pardon?
WHITEHOUSE: In a classified setting, it may or may not be an if.
MUKASEY: I’m not entirely sure what that suggests.
WHITEHOUSE: Well, I’m trying to be careful not to step outside of the boundaries that I’m obliged to pursue — to honor here of not being — not disclosing classified information.
At the same time, I’m trying to get some more information because I don’t think it’s fair to say that nobody has any basis from anywhere. I mean, just read The New York Times, read The Washington Post, read what people have said on television — there’s been a former CIA official who has been on the airwaves.
If that’s not enough to at least open the first red flag as to whether an inquiry should go forward, I don’t know what on earth could be. And if — so, that answer to me is just totally not credible.
So, then the question is, you know, where do we stand? Because I think anybody who even has a public view of what’s going on would suggest that there’s something that might at least merit the beginning of inquiry as to whether an investigation might be opened.
MUKASEY: All of that depends on whether certification was given, whether permission was given and whether it was permissibly relied on. And it would not — it should not turn on one person’s current view of what the statute requires or doesn’t require, because if it does, the message is, it all changes.
WHITEHOUSE: But aren’t there two questions here? There is no exemption under 2340(a) depending on whether the conduct was authorized by a supervisory official or not. There is no Nuremberg defense built into this criminal statute.
So, if you are to apply it, it would strike me that you would want to apply it not before an investigation has taken place, but once an investigation had reached a point where you were able to say, “OK, here’s what we think took place, here is whether or not it’s in violation and here is the legal analysis as to whether or not mens rea is adequate, given the nature of the authorization.”
But it strikes me that you’re telling me that nothing in that process is taking place because the certification alone obviates any further inquiry irrespective of how developed the facts are.
And I’m just trying to get, which is this? Is it that there aren’t facts well-developed? That doesn’t seem credible. Is it because there’s authorization, we’re not going to look at this no matter what? If that’s your position, fine, but let’s just say so and then I’ll understand.
MUKASEY: That’s not my position.
WHITEHOUSE: What is your position?
MUKASEY: My position is that there is an ongoing investigation and that I’m not going to speculate on what might or might not have happened, particularly with regard to authorizations.
WHITEHOUSE: But the ongoing investigation, as far as we know, is only into the destruction of tapes. It has nothing to do with the underlying interrogation, unless you’re telling me that that’s the forum. Is that the forum in which this will get decided?
MUKASEY: That is in part dependent on what John Durham’s investigation shows.
WHITEHOUSE: Well, let’s hypothesize that a little further. If it shows that waterboarding took place…
MUKASEY: Let’s not hypothesize anything.
WHITEHOUSE: Well, there’s only two choices. It’s not going to take us a long time to discuss the alternatives, either it did or it didn’t.
MUKASEY: It’s not a question of it taking a long time. It’s a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don’t think that ought to be the message.
WHITEHOUSE: Well, as an American — my light’s just gone on. If I may, I would like to thank you for the — and applaud you for the re-erection of the fire wall between the Department of Justice and the White House. I thought the manner in which it was done was excellent. And I’m sorry we seem to be at loggerheads again on this subject. But I didn’t want to close my questioning without letting you know that, in that area and many others, I appreciate and applaud the work you are doing at the Department of Justice.
MUKASEY: This is a good faith exchange, and I’m not suggesting that if you hadn’t said that, that it would — that there would somehow be a problem. I appreciate that you said it. But…
WHITEHOUSE: I also want to be fair.
MUKASEY: Me, too.
