Mukasey refuses to address waterboarding, defends telecom immunity
Top Judiciary Republican accuses Cheney of 'going behind my back' to stop warrantless wiretap oversight
Appearing before Congress for the first time since his confirmation hearings, Attorney General Michael Mukasey continued to duck and wave on the hot subject of waterboarding. He refused to make a straightforward judgement on the legality of the simulated-drowning technique, even in cases where it would involve US citizens.
Mukasey also continued the Bush administration's arguments to block oversight of its warrantless surveillance program, pushing for legal immunity to be given to telecommunications companies as part of an expected spy-law update.
Back in October, Mukasey refused to answer pointed questions from Senators about waterboarding's legality, saying he had not been "read into" the CIA's previous interrogation program that is alleged to have included the practice. Appearing Wednesday, nearly three months into his tenure, Mukasey did not budge much from that position.
The attorney general told the Senate Judiciary Committee that waterboarding was not currently used by US interrogators, but he said it would be inappropriate for him to make a hard-and-fast pronouncement about waterboarding's legality absent "concrete facts and circumstances" in which it would be used again.
"There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question," Mukasey said, echoing comments from a letter he sent the committee Tuesday.
Committee Chairman Patrick Leahy referenced comments from Director of National Intelligence Michael McConnell, who said it "would be torture" if he were waterboarded, and former Homeland Security Secretary Tom Ridge, who said the simmulated drowning "was, is — and will always be — torture".
Leahy, a Vermont Democrat, asked Mukasey if "waterboarding an American citizen, anywhere is illegal and torture," but the nation's top law enforcement officer punted.
"I understood what they said to have expressed their personal view. The one thing that separates me from them, is that I'm the Attorney General, and they're not," Mukasey said. "When I pronounce on the reach of general legal principals, that is taken as a statement of how far those principals go."
Mukasey also used Wednesday's hearing to continue pressuring the Senate to pass a long-term expansion of the Foreign Intelligence Surveillance Act and intervene in pending litigation against telephone and Internet providers.
On Tuesday, Congress passed a 15-day extension to a temporary FISA update (the Protect America Act) as lawmakers work out differences over whether to grant legal immunity to telecommunications companies.
Mukasey said some 40 pending lawsuits against companies that handed over reams of data on Americans to US intelligence agencies, in apparent contravention of the law, would harm national security if they were allowed to proceed.
"It would continue to put the conduct of companies front and center," Mukasey said.
His answer did not satisfy the panel's ranking Republican, Pennsylvania Sen. Arlen Specter, who has said the lawsuits should be allowed to proceed with the government as defendant to spare companies potential financial ruin.
"Why shouldn't that conduct be front and center? Why shouldn't it be subject to the challenge of an unlawful invasion of privacy? Why should the courts be foreclosed from making that decision?" Specter asked, noting that Congress's oversight authority has been virtually castrated by Bush administration efforts to keep the details of its warrantless wiretapping program hidden.
"When this committee, under my chairmanship, tried to get the records of the telephone companies," Specter explained, "Vice President Cheney went behind my back, contacted the members of the committee, Republican side, never even saw me, first or last. What's wrong with having that issue front-and-center and having a judicial inquiry and a judicial determination when this committee can't get that information?"
Mukasey said the government needs to assure telecom companies that they would not put themselves in legal jeopardy by complying with "good faith" requests from the government to assist in surveillance; that cooperation becomes even more important as technology increases, he said.
Sen. Russ Feingold (D-WI), one of the harshest critics of the administration's warrantless wiretapping, said he was disappointed that Mukasey seemed unwilling to establish more independence from the White House since assuming the role of attorney general in November.
"Another commitment you made at your confirmation hearing was that you would not be a 'yes man' for the president. ... On every issue you've discussed ... you've embraced the president's or previous DoJ positions, apparently without reservation," Feingold charged. "I was hoping to see a little more evidence of independent judgment."
This video is from C-SPAN, broadcast January 30, 2008.