Mukasey Oversight: HJC Edition

Coming in at the end of the opening statements. Conyers’ emphasis is on questions on torture and voting rights. Lamar Smith says crack dealers who have already served longer than coke dealers should stay in jail. And Mukasey says the telecoms need [ut oh, he’s got his talking points wrong] retroactive immunity and those crack dealers need to stay in jail.

Conyers

Any additional comments about waterboarding now that Hayden confirmed it?

MM: Do you have a particular question?

JC: Are you ready to start a criminal investigation?

MM: That’s a direct question. No, I am not. Whatever was done as part of the CIA program, was part of DOJ opinion, through OLC, permissible under law as it existed then. For me to use occasion of disclosure that that was once an authorized part of the CIA program would be for me to tell that they will now be subject to criminal investigation. That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.

JC: Are you prepared to give us the opinion?

MM: We have provided an unclassified discussion of the legal logic underpinning the opinions. Opinions cannot be turned over, remain classified.

JC: Every member of this opinion cleared for Top Secret.

MM: To the extent that the opinions deal with current program. Opinions dealing with past program, can’t simply turn them over.

JC: Can we meet and discuss your response to my question.

MM: Bc it was authorized to be part of CIA program cannot possibly be part of Justice investigation. Same Dept that authorized program would now be subject to prosecution for following that advice.

JC: We’re trying to make ourselves conversant with the response to my question. There must be some way we can be made more aware of the document in which you base your response.

MM: Depends on there having been an opinion that defined and authorized a particular program. I’m sure we can talk about additional discussion. My understanding is that there was ongoing discussion, particularly with the intelligence committees.

Recess for four votes.

[Nuts, this feed was dead for a while, so I missed some–at least Smith]

Berman: A technique does not have to be lethal to be torture.

MM: Fair to say.

Berman: Desire for cooperation bet DOJ and Congress. Jointly developing procedures for searches on Congressional offices? [Good question]

MM: Emphatically. Ongoing discussions to resolve that.

Berman: Are you saying that DOJ is committed to develop such a mutually agreeable process.

MM: Definitely.

Berman: Understand conduct done pursuant to DOJ authorization. I am curious whether you think the analysis that went behind that authorization was correct?

MM: What I undertook to review was the current program.

[MM will refuse to do any analysis of the torture memos, bc that would be tantamount to saying the only reason they’re not being prosecuted is because Yoo or Bradbury authorized them.]

Sensenbrenner: Timmeh Russert said, "we get #3 guy in AQ, don’t we have the right to beat it out of him." Obama said, emergency situations, I will make judgment at time. Do you agree that if he became President he should be able to make that judgment. Do you think Congress should make that decision right now?

Sensenbrenner: Crack dealers, any stats on the 1600, what communities they were dealing crack in prior to their arrest and conviction?

MM: I believe we can make distinctions based on their criminal history.

Nadler: I was interested to hear you say that if the President asks a person to do something that is against the law, it is against the law. President admitted he did that with FISA. Given this apparent prima facie case that the AG engaged in felonious conduct appoint a Special Counsel to invsetigate this. You said to Leahy you don’t know whether President acted in violation of statutes. We need to know the answer. Did the President break the law? I believe we need to know the answer. Will you now agree to appoint outside Special Counsel.

MM: No I will not. Because there is one detail that was omitted and it may have been my fault. There was in place an opinion describing the basis for the program. I understand that there are views on both sides of that.

Nadler: Hamdan ruled that the two excuses from DOJ was not sufficient justification. On behalf of DOJ, representing President, you say it’s not illegal. When you attempt to get it into court, then the govt comes out and says you can’t get into court, because of State Secrets. You set up situation where the President and the AG assert the President’s right to do that and there’s no way to litigate that. Is there any way, otherwise State Secrets has to yield, otherwise no one has a check on the President’s claim to power.

MM: To my knowledge the State Secrets backup has been sustained.

Nadler: Would you agree that the court ought to be provided with information in order to rule on State Secrets. Court often rules on affidavit without seeing the docts themselves. Would you agree that the courts ought to see that?

MM: I believe courts have what they consider is ample basis.

Nadler: We held hearings on extraordinary rendition. We’ve been told that we got assurances from Syria on Arar. Would you commit that you will send someone from dept to answer questions about the assurances from Syria.

MM: Some of this has been subject of classified briefings to this committee and other committees. Also, Arar is still on no fly list.

Nadler: He shouldn’t be on no fly list. We have not heard of assurances from Syria, even on classified basis.

Scott: Where is the review of torture? If it is torture in violation of criminal code, they can’t immunize themselves from criminal sanctions?

Watt: Concerned about President’s budget. Why Bush cut so much from DOJ. Copps, Weed and Seed, Cut $120 out of Violence against Women. Do you have the same level of concern as we have?

MM: Creation of budget not my area, we had a frank exchange with OMB. We’re trying to focus our efforts in coherent way.

Jackson Lee: Elimination of Copps a problem for majority of members. Concerned about Civil Rights Division. Raised at every hearing.

Waters: You have a problem with immediate release of crack dealers. Ignores process that must be followed before anyone is released.

MM: Arises in case some substantial time to come back before the court.

[Hahah! one of the problems is that the USA may not still be there. I wonder why.]

Lofgren: Efforts to adjust or recoup for problems we discovered. Goodling testified that she applied political litmus test. What steps are you taking to combat politicization.

Lofgren: Why would you recommend that Bush veto simply because of monetary reimbursement for telecoms?

MM: It’s not just monetary.

Lofgren: If you went to me and said, "shoot Adam Schiff, I couldn’t say that’s okay because you told me to do it."

Schiff: Can we change the hypothetical.

MM: That’s lightyears away from what we’re asking.

[Why doesn’t Lofgren point out that the law says the AG, not the WHCO, has to certify legality??]

Lofgren: No court is going to assign liability unless there’s a bright law.

MM: Ongoing litigation, hit in stock price, we think is unacceptable.

Wexler: Failure to reply to Congressional subpoenas. Refusal of Bolten and Miers to even appear. Have you been instructed by POTUS to enforce or not to enforce subpoenas.

MM: I can’t say.

Wexler: Can you tell me the individual that Clinton instructed not to appear?

MM: Dellinger wrote an opinion.

Wexler: I didn’t ask opinions. I asked about the President instructing someone not to appear. Have you been instructed to enforce or not to enforce contempt citations.

MM: That’s privileged.

Wexler: Should Congress pass a contempt citation would you enforce it?

MM: If you’re talking about a contempt citation based on Bolten’s failure to appear–he can’t violate the President’s request.

Wexler: Are you the people’s lawyer or the President’s?

MM: AG of US.

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63 replies
  1. nomolos says:

    So if they say it is legal it is legal and to prove it was legal they will not have an investigation. This is truly beyond the pail. What is it that makes these, seemingly or previously, honorable people lie through there bloody teeth?

    How come you type so fast?

  2. Loo Hoo. says:

    MM: Do you have a particular question?

    Did that piss Conyers off? Cuz it sounds really smart-ass to me.

    JC: Can we meet and discuss your response to my question.

    Is that what Conyers was talking about, or a combination of the responses?

  3. Fractal says:

    This is a full court press today. NSA Director Gen. Michael Hayden at House Intelligence over on C-SPAN3 and C-SPAN radio defiantly defending torture while FBI Director Mueller and Army General both say torture is unnecessary. Muk refusing to investigate torture at House Judiciary, over at House Judiciary’s webcast.

    HJC webcast: http://judiciary.house.gov/

  4. ApacheTrout says:

    Let’s find out who those int. com. members are that MM’s referring to. My bet is that it was a select group who not allowed to discuss the contents of the memo with anyone, and that the act of showing the memo was taken by the WH as Congressional oversight/approval of OLC memo since no comments were made. Nice circle, eh?

    MM says that if OLC authorizes something as lawful, then it’s lawful and there won’t be an invest., period. This strikes me as purely dictatorial/monarchical, as it dismisses the judicial branches role in determining the legality of an act.

  5. Helen says:

    By saying tha DOJ cannot investigate DOJ because “That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.” Isn’t Mukasey making the case for a Special Prosecutor? Or is he saying that DOJ can never be investigated?

    • emptywheel says:

      No, he’s making a more narrow point, but one with troubling consequences. If DOJ tells you, it’s legal to steal from Dick CHeney, and you then steal from Dick Cheney, they can’t very well prosecute you for it. What BushCo has done (and wants to continue to do with Bradbury) is to write ridiculous opinions that justify everything, making it impossible for them to be prosecuted after the fact. MM uses the same logic Wrt contempt, but I think there is reason to argue those opinions were not proper, given that Bradbury wrote one while in violation of the Vacancies REform Act, and Clement wrote the other while he was in a horribly conflicted role of both directing the investigation and representing the WH on this.

      • GulfCoastPirate says:

        I’m not a lawyer but, …. but, …. but ….

        when I was in the military I was told I shouldn’t follow an order that wasn’t lawful since that would make me liable for prosecution (at least that’s the way I understood the situation). Is Mukasey now saying the exact opposite of this? Didn’t some of Hitler’s people try this defense?

          • GulfCoastPirate says:

            If they follow the usual course we’ll ‘hear’ about things and that’s where it will end.

        • RevDeb says:

          He’s trying to parse what is lawful, saying that there was a “valid” legal opinion from the OLC that made everything OK and gave them permission. Now our guys want to see a copy of that opinion and he says, no, it’s a secret.

          This is like grade school private club kind of stuff—if it weren’t about the Constitution and rule of law, I would laugh, it’s so childish.

          • GulfCoastPirate says:

            I agree, which is why I am having such a hard time getting enthused about the Democratic Party this election cycle, including for president. What, exactly, do they stand for these days if they keep letting all this crap go with no pushback/consequences?

      • bmaz says:

        I think there is reason to argue those opinions were not proper, given that Bradbury wrote one while in violation of the Vacancies Reform Act, and Clement wrote the other while he was in a horribly conflicted role of both directing the investigation and representing the WH on this.

        Well, yeah; not to mention that it is pretty clear from precedent that the stinking OLC opinions don’t carry this final word of god in the first place. Pure unadulterated BS this is.

        • pdaly says:

          I hope the NY Times writes about this….

          (I know, wishful thinking).

          Where is George Soros? We need a new Free Press like…yesterday.

  6. bonjonno says:

    EW- I think you left out an ‘a’ up top. Thought it said Muskey at first and was transported back in time.

  7. skdadl says:

    Just at the point of Mukasey’s “not appropriate,” he also said something close to “anyone [ie: CIA] who relied justifiably on DoJ opinion” at one point would now have to understand “that you will be subject to criminal investigation when, as, and if political winds change.”

    In other words, Mukasey believes that positions on torture are a question of “political winds.”

    Seriously: he said that.

    • bobschacht says:

      Just at the point of Mukasey’s “not appropriate,” he also said something close to “anyone [ie: CIA] who relied justifiably on DoJ opinion” at one point would now have to understand “that you will be subject to criminal investigation when, as, and if political winds change.”

      In other words, Mukasey believes that positions on torture are a question of “political winds.”

      Maybe this will become known as the “Batshit Crazy” defense: “I thought the DOJ was batshit crazy, but they told me it was legal, so I did it.”

      Are we skating close to Nuremberg here?

      Bob in HI

  8. Mary says:

    My understanding is that there was ongoing discussion, particularly with the intelligence committees.

    Hence Pelosi’s desire to keep impeachment and thorough investigations off the table.

  9. Helen says:

    What the hell is Sensenbrenner doing? I believe he is throwing Mukasey a bone so that he can diss Obama. Mukasey missed it.

  10. ApacheTrout says:

    JS – quoting Barack Obama about him choosing his techniques.
    JS – Obama defending presidential powers against hamstrung law passed by Congress.
    MM – If Congress passes a statute, then it becomes law. President is bound to law. As a practical matter, can the President order someone to act outside of law.

  11. Mary says:

    13 – basically yes, but he’s being more cutesy. He’s saying that since a couple of political partisan, pro-torture, wannachange existing law by secret Exec Branch opinions, sociopath loyal Bushies put a disingenuous rationalization into the form of a memo, suddenly – and without any input from the legislature or any court – it became “legal” to torture and coerce and act with depravity, because the secret opinion of a couple of depraved sociopaths changed the definition of torture and thereby “made it legal.”

    It’s crap, but that doesn’t matter anymore. We don’t have a Dept of Justice, we don’t have anyone with integrity as AG, we don’t have anyone with integrity leading any of the agencies involved (we have Mueller, McConnell, Hayden, had Tenet, had Negroponte – and isn’t it mindboggling that he seems to have been the best of the lot, etc. etc.) we don’t have judges who enforce the law, we don’t have a legislature that will do anything other than go after Dem sexual encounters, we don’t have much of anything left.

    What we have is, “If the President does it, it’s legal” Pretty much exactly what Mukasey promised in his nomination hearings we wouldn’t have.

    And we have torture – which Mukasey agreed is unConstitutional – becoming Constitutional via a private OLC opinion by a couple of creeps and cretins.

    Go buy them all some more flag pins for their lapels.

    • GulfCoastPirate says:

      The thing I keep asking myself over and over is – why do the Democrats go along with all this? It’s like they’ve lost all pride in themselves.

      • RevDeb says:

        Mary says:

        My understanding is that there was ongoing discussion, particularly with the intelligence committees.

        Hence Pelosi’s desire to keep impeachment and thorough investigations off the table.

        Which Pelosi was on at the time. I think Mary sums it up. They are all fingered in the conspiracy and none of them have the strength of character to fess up and say they goofed and take the consequences for the good of the country.

        Pathetic.

        • GulfCoastPirate says:

          Pathetic – that’s the nicest word I could think of to describe it.

          Romney’s out – it’s McCain. This could all get a lot worse.

    • IMbobo says:

      And we have torture – which Mukasey agreed is unConstitutional – becoming Constitutional via a private OLC opinion by a couple of creeps and cretins.

      So we have the executive branch refusing to investigate itself, and under the “unitary executive” theory it extends the reach of its refusal to every district in the country. The other available means of redress are congressional action (as in, doing something, not just Conyers asking questions). Or private lawsuits, but nobody has standing because Congress removed their rights by passing the MCA.

      Leaving us nothing. The unitary executive branch IS above the law.

  12. ApacheTrout says:

    rep from NY: quizzing about Pres. ordering someone to act outside of law, engaging in felonious conduct. MM didn’t know if the Pres. acted in violation of FISA and break the law IRT warrantless surveying. Will you appoint special investigation?
    MM: OLC opinion describes the legality of the President’s action. Hints that the OLC relies on the Authorization to Use Military Force.

  13. Helen says:

    Nadler up YAY: So you said that the President can’t tell someone to act outside the law. But he did that with the telecoms. You said to Leahy that you don’t know if Pres acted outside the law vis a vi FISA. Did he? And where’s the special prosecutor?

    Mukasey: No; OLC said they could break the law.

    Nadler: Supreme Court ruled that the Pres is bound by the law. So reasonable people agree. So, it’s the court who should decide. But gov’t assert state secrets. So there is no way of checking that?

  14. ApacheTrout says:

    rep from NY: court decides legality, but here we have the plaintiff pursuing in civil court, but government declares states secrets. Is there any way for Congress/court to check President’s claim to power?

    MM: the court is provided with info related to the basis of the claim of states secret. courts see affidavits in some cases. some times things are quite clear, some times they are not.

    rep from NY: ext. rendition. Would you commit or agree to send someone from the Department to explain who obtained assurances that torture would not occur?

    MM: my understanding that this was explained to some members.

  15. Burkefan says:

    Oh for a little passion or righteous indignation from the dems! Mukasy is so arrogant. These hearings are depressing; nothing ever changes, and our liar in chief always gets his way in the end.

  16. behindthefall says:

    Hail the Absolute Monarchy. Say goodbye to the quaint concept of Inalienable Rights. We are veering pretty close to a resurgence of the Divine Right of Kings/Presidents, here.

  17. JTMinIA says:

    It’s not Nuremberg, but it’s almost as bad. We no longer have three branches. The Exec gets to write the laws via “signing statements.” It also gets to adjudicate by having some hack write an “opinion” inside Justice.

    I hope Schumer and DiFi are happy.

    • ralphbon says:

      I hope Schumer and DiFi are happy.

      Time was, I gained minor solace at the thought of Cheney, Rumsfeld, Bush, et al., living out the rest of their lives skulking cautiously and lying low, like Ratko Mladic, for fear of extradition to the Hague.

      Now I need to include our complicit Democratic leaders in the same wishful dream.

    • Burkefan says:

      I just called Feinstein’s and Schumer’s offices and thanked them for giving us Mukasey – worse than Gonzo!
      Feinstein – (202) 224-3841
      Schumer – (202) 224-6542

  18. JTMinIA says:

    Absolutely worse than Gonzo. I’ll take the dumb jerk over the smart jerk any day. That’s why I have prayed for GWB’s health every day for seven-plus years.

  19. ApacheTrout says:

    Will someone ask if Mukasey conferred with WH on appointment of Special Prosecutor? It seems that he has excellent talking points that attempt to put the Justice Department in good light IRT integrity.

  20. ApacheTrout says:

    since when is Justice concerned about the stock price of a firm? He’s stating that JD’s prosecution of alleged criminal behavior can be influenced by stock price of defendant. Wow.

  21. kspena says:

    What was admitted was that the CIA carried out waterboarding three times. There is no mention of who else or what other private organizations might have done so..

  22. Helen says:

    HA – Wexler bringing up Miers and Bolton contempt. “limitless executive Branch usuptation of authority.”

  23. Helen says:

    Wexler: Has the president told you not to uphold teh contempt citations?

    Muk: I can’t say – but past history say that the president can tell people not to testify. There has also been history of accomodation.

    Wexler: Who did Clinton instruct not to appear?

    Muk: there have been opinions..

    Wexler: I am not asking about opinions – what about Clinton?

    Muk: dunno

    Wexler: There are none

  24. RevDeb says:

    Wexler: Have you been instructed to not enforce contempt citations issued by Congress?

    “Nah nah na nah na. I don’t have to tell you.” or something like that.

    • Praedor says:

      No need because NO basic trainee is ever exposed to the VERY brief waterboarding technique. ONLY spec ops peeps get that shit, and then only briefly (so they know what’s up) and that’s it.

      Quite a difference from what prisoners are exposed to.

      I want the ENTIRE GOP waterboarded posthaste. THEN we can drag their soggy, crying, choking asses back onto the floor and ask them if waterboarding is torture.

  25. Helen says:

    Is something up with Monica? Why is Gomert trying to get her out of testifying that she broke the law by using political tests when hiring?

    • merkwurdiglieber says:

      He represents a district that was redrawn by Rove for him. He is always
      wanking about some past crime against conservatism or his time in the
      army… winner and still champion of the shit for brains finals.

      • Helen says:

        Yeah – but I thought she has immunity for that. That’s why she admitted it in the hearing. Why aren’t they letting sleeping dogs lie? It jsut seems out of place to me.

        • merkwurdiglieber says:

          It is, with him especially, a question of temperment and a deep sense
          of personal loyalty to Bush, Rove and, in this case, Goodling as a
          loyal member of that cohort. He in no sense a representative of his
          district, just an employee of Bushco and shares their resentments above
          all.

  26. zuch says:

    Nadler: We held hearings on extraordinary rendition. We’ve been told that we got assurances from Syria on Arar. Would you commit that you will send someone from dept to answer questions about the assurances from Syria.

    MM: Some of this has been subject of classified briefings to this committee and other committees. Also, Arar is still on no fly list.

    As well he should be. That traitor Arar tried to defeat the Yoo Ess of Aye … in court. We had to use our Sooper-Dooper Invisibility Ring to make our escape. Obviously an Enemy of ‘Murkah and a dangerous person to boot…..

    Cheers,

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