SJC Mukasey Hearing, Four

Cardin: Sorry I’m late, Junior Senator from VT was babbling on.

[That’s okay, Bernie gets all the time he wants.]

Cardin: thanks for communicating. Waterboarding cannot be justified. If we try to justify it, it’ll be hard to defend American interests. I believe clarity is needed. It’s very difficult for us on Helsinki commission to explain what we’re doing.

Cardin: Immunity, I’d urge you to the precedent of giving retroactive immunity of further abuses, whether it would have a permanent damage on role of courts in protecting civil liberties of American people. We need to preserve the rights of our courts. I’d urge you to take a look at this to see if accommodation.

Cardin: Third point, sunset, you’re urging against. The Senate has a six year sunset, House two year, I have an amendment for four year sunset, I believe next administration needs to have a position on this.

Cardin: It’s important to keep Congress engaged in this to give whoever is engaged in FISA more cover.

Cardin: Election issues and Civil Rights, not enough attention. If 2006 is any indication, there will be efforts made to suppress minority voting. We’ve seen in past elections fraudulent material to intimidate minority voting. How will you make sure such things do not go unchallenged. We have a bill that would strengthen DOJ role. I would hope you’d give fair warning that such tactics will be challenged.

MM: Monitors to make sure there is access to ballots. Also a memo indicating that their sensitivities have to be heightened, and also bringing prosecutions that might be perceived as a prosecution to affect an election. Want to make sure it’s based ONLY on the facts of the investigation, not the timing of the election.

[Are you saying it was done in the past, Mike?]

Cardin: If your office finds activity where someone says they’ll be arrested if they vote if they’ve got unpaid tickets.

MM: You and I have discussed statements that are clearly fraud. This is a matter of opinion about one candidate or another. We are going to make every effort to make sure that does not happen.

Cardin: One more comment about Civil Rights. Head is subject to confirmation. I ask you to give your personal attention to Civil Rights division to return it to its historic role to protect rights of minorities.

MM: We observed the 50th Anniversary of Civil Rights division, that has become emblematic of division, met with nominee, unit chiefs, to encourage them in historic interest.

Whitehouse: I’ll put it in form of letter. Has to do with Office of Legal Counsel, has been legal compass, some of the declassified sections of opinions, give me cause to worry that it has become hothouse of ideological opinions protected by shield classification.

[Pixie Dust!]

Leahy: I realize some of these we may have to discuss in classified section. We’ve read of disarray in OLC. Perhaps that’s something we can meet privately.

MM: I know that when you comment when there’s no question. A book that you’ve referred to says that regardless of what you think or don’t think, nobody ever believed they were violating the law or intended to violate the law.

Leahy: I’m not suggesting they were breaking the law. I’m suggesting that opinions shouldn’t be ideological. I want to make sure that someone looks at law.

Leahy: One other area: Nat Hentoff, Durham’s lack of independence. Durham to DAG to AG, thereby will not be autonomous. Fein, who served in Reagan DOJ, raised similar questions is that AG is still entrusted to invoke state secrets to determine what evidence to give prosecutor. I read those articles–why wasn’t he given authority SC PatFitz was given?

MM: There is a regulation regarding when you appoint SC and when you don’t. To suggest every time a big case comes up, that there is a conflict does something pernicious.

Leahy: you say there may have been a conflict with CIA Leak, but not on this.

MM: I don’t want to tell DOJ "we don’t have faith in you."

Leahy: raises the question of what the conflict was in USA ED VA.

MM: Possible facts.

Durbin: Are you familiar with Jim Comey?

MM: Yes. He had occasion to be before me as a lawyer and as USA. I’ve had occasion to take counsel from him, to talk about DOJ.

Durbin: You respect his judgment?

MM: Yes.

Durbin: Let me ask about Bradbury. Before you said you didn’t know about him. You’re probably familiar that he’s been involved in some of the most controversial opinions in DOJ. It has raised questions about his fitness to serve in OLC. When Comey was asked about these memoranda, he said DOJ would be ashamed if the opinions became public. You said he was a fine lawyer. I’d last to ask you whether you’ve reviewed all his opinoins.

MM: I’ve reviewed some of them. You asked about Comey. I also have come to know Bradbury. Had some limited contact before confirmation. To say that Jim Comey has good judgment is not to say he is inevitable about every judgment or the judgment about one document is a permanent scar to the author of that document.

Durbin: Interrogation and warrantless wiretapping. Have you reviewed those opinions?

MM: Reviewed his opinion about the current program. Did you happen to review the opinion where he spoke of combined effects which authorized CIA to use multiple techniques.

Durbin: AG approved this over objection of Comey, who said DOJ would be ashamed if opinion became public.

MM: If the opinion that I reviewed is dated in 2007. So I don’t think the timing works out.

Durbin: Could I ask you if you would consider reviewing that opinion and perhaps get back to me if you believe he is a man of good judgment.

MM: I will look at it again.

Durbin: You said you would review it, he appears to be serving in violation of Vacancies Reform Act. Do you feel like he is effective head of Legal Counsel at this point?

MM: I have dealt with him in this context.

Durbin: The time has lapsed, that violates spirit of law. He appears to be serving in violation of law. I will ask you again if you have read Bradbury’s opinions. I expect his nomination will depend on your review of his opinions.

MM: Those opinions would be considered principally whether they relate to current programs.

Durbin: I don’t think that’s adequate. Some of those opinions have been disavowed.

MM: His opinion was not a bad opinion.

Durbin: It deserves your close scrutiny.

Leahy: Mr. AG. I appreciate that you have kept in touch on a number of issues. We’re still not getting enough clarity on a lot of opinions. Our system depends on the law being public. Quotes from letters from generals rejecting waterboarding. I’m afraid that when the Admin doesn’t declare waterboarding off limits, it undermines our moral authority of the US. We see repressive regimes pointing to the US. At Davos, I heard from a number of friends of ours wondering why we can’t declare it to be illegal. It’s unfortunate reflection of our law and values that AG cannot say waterboarding of American is illegal. Oversight makes govts work better, something that Grassley has said. Accountability moments. I think that while we want accountability, we’re short on it. We want this DOJ to be the best in the world, we’ll work with you to make it that.

MM: Yesterday you and I had conversation in which I said that in spite of our disagreements that we could continue to work together. It has been. That allows me to do my job.

Leahy: I will work with you on those things that will make it better.

81 replies
  1. jayt says:

    Mukasey – “I’m preparing a memo to my prosecutors that persecution in voting should not be tolerated.”

    “This memo should be finished and distributed by January of 2009.”

    • jayt says:

      What? Cardin is playing “good cop”?

      The “good cop” role is always most easily played by actors who lack a spine.

  2. Leen says:

    A question from a peasant. Will anything come of this? Or will Mukasey keep moving the line in the sand?

    Leahy to Whitehouse “one more little question” funny

  3. RevDeb says:

    Sheldon isn’t done yet but will be writing a letter re the OLC and opinions that it has rendered—

    Hothouse for rogue ideological opinions hidden under classification.

    Do tell!

    • Helen says:

      Oh – I believe these are the three that he referred to a few weeks back: 1) that Bush can determine his own self what his powers under article II are. 2) that the DOJ can render any opinions they want, but Bush van over ride them, and 3) that is Bush writes a Pres. directive (wrong word – what’s the word?), then he can change it just by virtue of not following it and he doesn’t have to tell us he is not following it.

      • RevDeb says:

        the term you are looking for is Executive Order.

        Shorthand- If Chimpy says it’s legal, that’s good enough. All he has to do is wave his magic wand.

        • perris says:

          the term you are looking for is Executive Order.

          Shorthand- If Chimpy says it’s legal, that’s good enough. All he has to do is wave his magic wand.

          the term jamesjoyce came up with which is perfect would be;

          “divine right of kings”

  4. BoxTurtle says:

    Ya know, with impeachment off the table and NONE of the comtempt citations going anywhere I wonder what the point of this is?

    AG will only answer questions he wants to and refuse to understand or answer the other questions.

    We were better off with Gonzo, at least he wasn’t fooling anybody. Some of the Dems still seem inclined to consider Mukasey independent.

    Boxturtle (Bush must be so proud he got this fellow confirmed)

      • BoxTurtle says:

        Feinstein seems the worst. Schumer is starting to reach his limits, I think he’ll publically admit what he already knows before the end of this hearing.

        Boxturtle (No hope for DiFi, I think Bush bought her off during the AF1 ride)

  5. bobschacht says:

    EPU’d from last thread:
    As I wrote on another thread earlier today, Mukasey is resisting making a policy pronouncement on torture. Instead, the administration’s position is that it deals with whether or not to torture on a case by case basis, with the final decision being made by Bush &/or Cheney.

    Bob in HI

    • Rayne says:

      Which is probably what they did on a case by case basis from the comfort of their offices back in 2002-2003: “Doesn’t look like torture to me, waterboard him again.”

  6. radiofreewill says:

    Whitehouse ‘gets’ it.

    Use of Classification/Compartmentalization to hide Ideologically-driven Rogue OLC Opinions.

  7. radiofreewill says:

    Durbin asking Murky about Comey – Do you know him? I respect his judgement.

    Are you familiar with Steven Bradbury?

  8. Jeff says:

    Hmm – Mukasey says the opinion(s) from Bradbury that he reviewed re interrogation were from 2007, i.e. not including the ones that were written in 2005 and reported on in the NYT last October in a very important story. Very curious what those 2007 opinions are, though presumably a good guess is that they are opinions on the specific techniques currently in use in the newer version of the CIA’s euphemistic enhanced interrogation techniques program.

  9. RevDeb says:

    Durbin on Bradbury—he’s serving in an important position in violation of the law. Doesn’t that bother you?

    Mucus: What law? Law? who cares.

  10. radiofreewill says:

    Durbin: You have previously said that you believe Bradbury is an outstanding lawyer. Have you reviewed Bradbury’s opinions?

    Murky: Not all of them.

    Durbin: Is Bradbury the head of the OLC, despite questions of the legitimacy of his appointment?

    Murky: Yes.

  11. BayStateLibrul says:

    If we said that waterboarding is wrong: Bush/Cheney would be up for War Crimes.

    That’s the fucking reason.
    Cover thy arse.

  12. skdadl says:

    The whole conversation about Comey and Bradbury has been fascinating — gosh, I hope that someone makes a good YouTube of that exchange. Mukasey’s responses to questions about Comey were strangely constipated, and I’m being polite when I say that. Comey’s opinions are “not inevitable”? What on earth does that mean?

    Given all the international treaties that the U.S. has signed, which I believe makes them U.S. law as well, treaties based on jurisprudence often developed by American judges and lawyers, Mukasey still does not understand what Comey meant when he said that in time to come the department would be ashamed of Bradbury’s memos?

    • Leen says:

      I thought Mukaseys response was interesting as well. He indicated that he had read the opinion that Durbin was referring to when Mukasey said he would agree to read it “again”

  13. jayt says:

    Am I the only one who is concerned about this preoccupation with waterboarding? It is but a mere component of several tortuous techniques that have been, and presumedly still are being used, by our intelligence thugs.

    I worry that eventually the admin will come out, after a bitter fight and much stonewalling, and after way too much time has passed, and say “okay, we’ll stop waterboarding”.

    An then the investigations will stop, everyone will pat him/herself on the back, and say that everything’s just swell.

    It’s just a component of a much wider array of torture techniques, possibly even rare, while all of the rest of the torture techniques, by omission, get a pass…

    • RevDeb says:

      No Jayt. you are not the only one. Waterboarding is just a symptom and symbol of everything they have done to destroy the country as we thought we knew it. As long as that is the only focus, all of the rest of the illegal crap slides through. There were some questions about other stuff but the stock answer to every question from this admin. is essentially “FU, I don’t have to answer and you can’t make me.”

    • JohnForde says:

      I don’t think the focus on waterboarding is a bad thing.

      Admitting to waterboarding would make it impossible for Bush to travel abroad after he leaves office. He doesn’t want to travel and probably wouldn’t anyway. But the taint on him would hurt republicans enormously.

      I hope he does admit it, does travel abroad, is arrested, is convicted and is sentenced to what he deserves.

      That level of repudiation is probably the only thing that can restore our constitution.

  14. radiofreewill says:

    I thought one of Mukasey’s highlights (or lowlights, if you will) was saying that he didn’t see any reason for the DC USA (Taylor?) to go against the tradition of ‘accomodation’ and Prosecute the Contempt Charges against Rove, Bolten and Miers.

    He also said that any ‘accomodation’ wouldn’t include a Transcript, either.

    Say hello to Gonzo Jr.

  15. Mary says:

    MM: I don’t want to tell DOJ “we don’t have faith in you.”

    Well then let me do that for you.

    No faith in a torture supporting Atty Gen. No faith in a torture supporting Office of Legal Counsel. No faith in a frat boy torturer given carte blanche byt he DOJ to direct torture at whim. No faith in anyone who has stayed with the Dept. of Justice as its proclivities to solicit and cover up torture in the name of “loyal Bushiness” came ot light.

    Uh – Durbin does know that Comey is the guy who went, with Clement, to try to make Mukasey set aside his order giving Padilla right to counsel and in the process got told by Mukasey that the two – Clement and Comey – qualified as tweedledee and tweedledum?

    It’s like the Dems have abandoned any need to do anything other than invoke Goldsmith and COmey – how damn low does the bar have to go?

    At least Fein is a worthwhile reference point.

    • phred says:

      Congress is treating the public with utter contempt. They are barely even going through the motions for show. What a disgrace.

  16. Mary says:

    I guess we are left with the only real question being – which is the better theme video for the Mukasey/Bush DOJ?

    This 3 woof night version, with hypnotic bright shinies:

    Or this “imperial we” version, that offers up both the theme and answers the question of “what thigs did Mukasey find repugnant that he wouldn’t say to Schumer” at the same time:

    It’s beyond farce now, isn’t it? The only ones who can still smile over the roles played in all of this are the same people who are amused watching dead bodies bloat.

    • phred says:

      I have to say that Leahy’s comment towards the end about how Mukasey could go back to running DoJ, while the Senators went back to see what mischief they could create on the floor, absolutely pegged my seethe-meter. It is bad enough that members of Congress refuse to do their jobs, but to have Leahy treat the whole thing as a big joke really really fries me. Beyond farce indeed.

  17. TheraP says:

    radiofreewill: Word-smith of the Day for the following terms:

    “moisture questioning”


    “lowlights”… (as opposed to highlights)

    As a committee of one, I arrived at this unanimous result.

  18. bobschacht says:

    Just a suggestion here:

    Emptywheel, would you pleas write one summary post about the Mukasey hearing today suitable for spotlighting?

    Everyone else: If EW does a summary, everyone please spotlight to 10 reporters around the country to help the MSM focus on this travesty. And don’t forget to add a “comment” in the space provided to help focus their attention on the most eggregious aspects of MM’s testimony and/or Congressional inaction.

    I really like the spotlight function provided here; I think its one way that we can prod the MSM to do more than merely “report.”

    Bob in HI

  19. perris says:

    just posted this over at janes, needs to be posted here even though it’s off topic, it’s the lead over at think progress right now;

    1 million: Iraqis who have died “as a result of the conflict in their country since the U.S.-led invasion in 2003, according to research conducted by one of Britain’s leading polling groups.” The survey also found that “20 percent of people had had at least one death in their household as a result of the conflict, rather than natural causes.” 5:09 pm | Comment (6)

    that’s right, the man in office is now a mass murderer of one million people and that number will increase even long past the next few adminsitrations

    man oh man oh man, is there a place even in hell for this kind of depravity

    • bobschacht says:

      “that’s right, the man in office is now a mass murderer of one million people and that number will increase even long past the next few adminsitrations”

      Remember this next time Preznit Boosh foams at the mouth about “bloodthirsty killers”. What a hypocrit.

      We can say that Bush and Cheney are getting away with murder, and it is literally true.

      Bob in HI

  20. CTuttle says:


    Marty Lederman

    Senator Feingold just asked Mukasey when he would share with the Committee — even in closed session — the legal explanations of why the CIA techniques are not unlawful. Mukasey’s response: He won’t, because it’s classified. That is to say: The scope and application of this federal law is so secret that not even the legislators who enacted it can be permitted to understand it. Short version: Congress can take a hike.

    Short and sweet…

  21. Sedgequill says:

    Some news correspondents, on NPR at least, have taken to speaking of waterboarding as a practice of “controlled drowning,” which is a big improvement over speaking of it as “simulated drowning.”

  22. BlueStateRedHead says:

    Off topic, except that DOJ nefariousness is so widespread that everything except the kitchen sink is on topic. And, who knows, they may use that one for their waterboarding, new euphemized style.

    What is the status of the FEC and Hans von Spakovsky? TPM had him resigning or resigning not to be named, and the WH was saying the opposite.

    • emptywheel says:

      He announced he didn’t think he’d be approved, but the WH is still refusing to withdraw the nomination; so we can’t have any new SEC commissioners unless we’re willing ot take him.

  23. bmaz says:

    I was out much of the day and missed most of the liveblogging. I have tried to catch up; lets see if I have this right. Herr Mukasey has been at the helm of the DOJ for a while now, and now that he is fully up to speed, he is thrilled to work with such fine people and the Department is in great shape. He doesn’t know what happened before he got there and can’t talk about what has happened since he got there. He either doesn’t know or can’t tell about what our government is doing to folks it considers enemies, which could be about anybody including citizens, but he thinks we probably shouldn’t rape them (murder ok?). Can’t talk about waterboarding, don’t want to investigate whether it is legal (and, of course he just doesn’t know), but no worries, because the President decides when we are going to do it. Everything is fine on the interrogation front though, because he talks to the White House and they say so. There is no reason to assume there is torture on the, um, torture tapes; but the are gone and we think that is just fine however his OLC has ordered Congress not to investigate and his office isn’t contemplating investigating what was on the tapes. He would aggressively prosecute employees and agents that tortured anybody, unless they actually tortured somebody. He really wants, and has to have immediately, retroactive immunity for all of the perfectly legal, patriotic and necessary surveillance. Lotta dead soldiers might still be alive if they could spy on Americans more. As to all the subpoenas and document requests that have been pending since the last of never, they are all privileged; but he will get right to work on the fuck off letter confirming that. Everybody at the hearing expressed happy happy joy joy at the mutual respect and cooperation they have for and with each other! What did I miss??

    • radiofreewill says:

      What did I miss??

      Only the looks of deep, deep disappointment on the faces of the Dems on the SJC…like they finally realized beyond all doubt that the guy across the table from them is willing to cheat to win.

      At his Confirmation Hearing, Murky couldn’t say it harshly enough – Waterboarding is Repugnant, Repugnant, Repugnant – but today, it was Repugnant doesn’t neccessarily mean ‘against the Law.’

      The old bait and switch on the clever use of words – how Orwellian of him!

      Mukasey is a Con Artist.

  24. Mary says:

    Pretty darn fine!

    He did withhold judgment on:

    but he thinks we probably shouldn’t rape them

    Apparently the standard is whether or not you might get some benefit from doing that.

    He would aggressively prosecute employees and agents that tortured anybody, unless they actually tortured somebody.

    Or unless they had “authorizations” because you can’t have authorizations (which are not to be confused with Nuremberg’s “orders”) that expire when AGs change.

    As to all the subpoenas and document requests

    Not only privileged, but it’s a privilege for the DC USA to be able to tell Congress he won’t enforce their subpoenas bc it shows conity comity to refuse to do work for the branch of government that pays your bill and writes your rules.

    The love and joy was there – except maybe when Feingold mentioned that the REST of ‘the program’ of torture might still be, you know, torture-filled, even without the waterboarding. Classified tho – so he can’t really say much – except to say that Mukasey isn’t really saying it right to say that it’s all fine now.

  25. masaccio says:

    Do these crooks think that they will be able to wipe out all traces of their law-breaking, so that the next administration won’t be able to punish them?

    • readerOfTeaLeaves says:

      Do these crooks think that they will be able to wipe out all traces of their law-breaking

      They do.
      Which explains their frequent use of Pixie Dust.

  26. Neil says:

    Republican Rep. Tom Davis of Virginia makes it official.

    “After much soul-searching and discussion with those closest to me, I have decided the time is right to take a sabbatical from public life,” the congressman said in a statement released by his office. “I will serve out the remainder of my term, and plan to remain an active contributor to Republican causes, but will not run for office in 2008.…..icial.html

  27. prostratedragon says:

    Murky couldn’t say it harshly enough – Waterboarding is Repugnant, Repugnant, Repugnant

    That always makes me think, So is shitting, but it’s commonly done on a daily basis. Empty word.

  28. SunnyNobility says:

    This group’s ability to convey substance and flavor _and maintain sanity and humor while doing so_ is stunningly impressive.

    Thanks for the yeoman service and spot-on analysis..

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