Tag: Michael Mukasey

The New York Times reports some members of Congress were briefed earlier this month on a Department of Justice proposal for new FBI guidelines that loosen surveillance restrictions and that a few Senators lodged objections.

The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.”

The plan “might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities,” the letter said. It was signed by Russ Feingold of Wisconsin, Richard J. Durbin of Illinois, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island.

Attorney General Michael Mukasey gave this unreassuring description of the plan: [More...]

Attorney General Michael Mukasey today said there will be no prosecutions from the investigation into hiring practices of U.S. Attorneys.

“Where there is enough evidence to charge someone with a crime, we vigorously prosecute,” he said. “But not every wrong, or even every violation of the law, is a crime,” he said. As the inspector general’s report acknowledged, the hiring violations were such a case, because the wrongdoing violated federal civil service law, but not criminal law, he said.

“That does not mean, as some people have suggested, that those officials who were found by the joint reports to have committed misconduct have suffered no consequences,” Mr. Mukasey said. “Far from it. The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity.

In a speech today (text here), Attorney General Michael Mukasey called on Congress, rather than federal judges, to make the rules for detainees filing habeas challenges.

The Center for Constitutional Rights responds:

“What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays. The Supreme Court has definitively spoken, and there is no need for congressional intervention. The Supreme Court explicitly said in Boumediene that the two prior attempts by Congress to intervene to prevent detainees from having access to the courts were unconstitutional.

“For six and a half years, Congress and the Bush Administration have done their level best to prevent the courts from reviewing the legality of the detention of the men in Guantanamo. Congress should be a part of the solution this time by letting the courts do their job.

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Attorney General Michael Mukasey was in London speaking to a group at the London School of Economics. After his speech, and speaking for himself only, he said he he personally opposed the death penalty for the 9/11 detainees at Guantanamo. He gave an analogy.

"I kind of hope they don't get it," Mukasey said after a speech at the London School of Economics. "Because many of them want to be martyrs, and it's kind of like the conversation … between the sadist and the masochist."

"The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it," he said.

Mukasey noted that the military commission trials at Gitmo are being conducted by the Defense Department, not the Justice Department, although DOJ is cooperating with them.

Law professor Doug Berman at Sentencing Law and Policy is outraged at Mukasey's comments. I'm not. [More...]

On January 30, 2008, Attorney General Michael Mukasey will testify at a Senate Judiciary Committee hearing on "Oversight of the Department of Justice."

Politico reports that waterboarding could be a topic and that the hearing will concern "the Justice Department's inquiry into the CIA's destruction of secret interrogation tapes."

He talks a good game.

"My job involves not only an oath, but also a pledge, which I now give you," Mukasey told the 110,000 Justice employees nationwide, some of whom watched on the department's internal TV system.

"And that is to use all of the strength of mind and body that I have to help you to continue to protect the freedom and the security of the people of this country, and their civil rights and liberties, through the neutral and evenhanded application of the Constitution and the laws enacted under it."

His announcement yesterday that security clearances were granted to continue the stalled OPR investigation into warrantless wiretapping was a good sign.

Mukasey has 14 months to repair the damage done to the Justice Department under Alberto Gonzales. While I don't think he'll be the President's errand boy, I'm also not getting my hopes up that he'll have the same definition of "civil rights and liberties" as the rest of us -- particularly when it comes to the "war on terror."

But, he's off to a good start.

Statement of Senator Dick Durbin

Senate Judiciary Committee Markup
Nomination of Judge Michael Mukasey to be Attorney General,November 6, 2007

Judge Mukasey has a distinguished record of public service and, but for one issue, speaks with clarity on the law. His nomination hinges on that issue: the cruel, inhuman and degrading treatment of prisoners held by our government.

On that issue, the late historian Arthur Schlesinger Jr. said this about the Bush Administration’s legal defense of torture: “No position taken has done more damage to the American reputation in the world—ever.”

Alberto Gonzales was an architect of this Administration’s torture policy. As White House Counsel, he recommended that the President set aside the Geneva Conventions, calling them “quaint” and “obsolete.” And he requested and disseminated the infamous torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure or death.

In light of this outrage by our former Attorney General, there is a heavy burden on Judge Mukasey to make his views on torture clear. I am sorry to say that he has fallen short.

During his confirmation hearing, I asked Judge Mukasey whether the torture technique known as waterboarding is illegal. He refused to answer this question.

To give Judge Mukasey a chance to clarify his views on waterboarding, I wrote him a letter, which all ten Democratic members of the Committee signed. We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal?

Judge Mukasey refused to say whether waterboarding was illegal because, quote, “hypotheticals are different from real life” and it would depend on, quote, “the actual facts and the circumstances.”

This is not a “hypothetical.” Waterboarding, or simulated drowning, is a torture technique that was used in the Spanish Inquisition. And today it is used in Burma against democracy activists.

There are no “facts and circumstances” in which we should condone waterboarding. The Judge Advocates General, the highest-ranking military lawyers in each of the U.S. military’s four branches, testified unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.

Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners. And our own State Department has long recognized that waterboarding is torture and cruel, inhuman and degrading treatment and has repeatedly criticized countries such as Sri Lanka and Tunisia for using waterboarding.

In a recent statement, Senators McCain, Warner, and Graham said, quote, “Waterboarding, under any circumstances, represents a clear violation of U.S. law. … anyone who engages in this practice, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution.”

These Republican Senators, the JAGs, and our State Department did not need to be briefed on the Administration’s interrogation program to conclude that waterboarding is illegal. Neither should Judge Mukasey. And because he has not been briefed, offering his opinion on waterboarding won’t give away any secrets.

Consider the risk if we do not speak clearly about waterboarding and torture. By what moral authority can we condemn repressive governments like Burma that use waterboarding? And how can we speak with moral clarity in demanding that enemy forces not subject American prisoners to waterboarding?

Let me address this notion that Mukasey should be spared from offering a straight answer on waterboarding because our laws and policies are unclear on the subject. America’s position on waterboarding was clear enough to convict Japanese soldiers who tortured American soldiers during World War II and clear enough for the Bush Administration to condemn waterboarding by other countries in the State Department’s annual Human Rights report.

Judge Mukasey’s position on waterboarding is troubling, but there are other serious concerns.

I asked Judge Mukasey about torture techniques other than waterboarding, including painful stress positions, threatening detainees with dogs, forced nudity, and mock execution. The JAGs told me that each of these techniques is illegal. But Judge Mukasey said the exact same thing about these torture techniques as he did about waterboarding: they are “hypothetical” and whether they’re legal would depend on “the actual facts and circumstances.”

Judge Mukasey is not alone in this legal dodge. During a July 24th hearing, I asked Attorney General Gonzales whether it would be legal for a foreign government to use these torture techniques on an American citizen. He said, “[I]t would depend on circumstances, quite frankly.”

Judge Mukasey also refused to say whether he agrees with President Bush, Secretary of State Condoleeza Rice and Defense Secretary Robert Gates that the Guantanamo Bay detention facility should be closed. Instead, he told me that Guantanamo is a “fright wig” used by the Administration’s critics and that detainees at Guantanamo receive “three hots and a cot, health care better than many Americans, and taxpayer-funded Qurans.”

There are serious questions about the involvement of controversial Justice Department nominee Steven Bradbury in defending illegal spying and torture. But Judge Mukasey had this to say: “It is my understanding that Mr. Bradbury is a highly competent and dedicated public servant.” But when I asked about the nine fired U.S. Attorneys, Judge Mukasey punted, saying, “I am not sufficiently aware of the job performances of these individuals to offer comment.”

In contrast to his refusal to comment on the legality of waterboarding Judge Mukasey was willing to reach other legal conclusions. Take one example: the controversial issue of retroactive immunity for telecom providers who participated in the NSA warrantless surveillance program. Although he has not been briefed on the facts and circumstances of this highly-classified program, Judge Mukasey nonetheless stated, “retroactive immunity in my judgment would appear appropriate.”

Take another unsettled legal question: whether the Second Amendment secures an individual right to bear arms. Here is what Judge Mukasey told me: “Based on my own study, I believe that the Second Amendment protects an individual right to keep and bear arms.”

In other words, Judge Mukasey agrees with the Bush Administration when it comes to retroactive immunity and the Second Amendment. Why is he willing to take a position on these controversial issues, but unwilling to take a position on waterboarding?

Some have argued that President Bush won’t nominate anyone who will speak clearly on the issue of torture. That may be true, but I would much rather have an Acting Attorney General for the next 14 months than have the Senate give its consent to an Attorney General who refuses to repudiate a cruel and abusive technique that has been regarded as torture for over 500 years.

Finally, many of my colleagues and editorial writers argue that the fate of Judge Mukasey should not be decided by just one issue. But many of us have said that issues like race and the equality of women really are so fundamental that they transcend many other concerns.

When the history of this time is written, the issue of torture will define America’s values in the age of terrorism. Judge Mukasey’s responses to our questions on the issue of torture make it clear that he does not understand the challenge of this moment in our history.

Statement Of Chairman Patrick Leahy
On The Nomination Of Michael B. Mukasey To Be Attorney General Of The United States

November 6, 2007

I spoke in Vermont last Friday about my decision to vote against the President’s nomination. I wish to emphasize a few important points this morning.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This Administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks of those governments that approve of torture. This President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions or disregard U.S. statutes such as our Detainee Treatment Act and War Crimes Act. They should not be allowed to overturn more than 200 years of our Nation’s human rights and moral leadership around the world.

The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts, and the American people in the dark about what they are doing. The President says that we do not torture, but had his lawyers redefine torture down in secret memos, in fundamental conflict with American values and law.

I agree with the Generals, the Admirals, and our JAG officers that waterboarding is torture and is illegal. If an American were waterboarded anywhere in the world, would we have to know the “circumstances” and purported justifications for it before condemning it? Of course not.

Some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one. Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this President.

But the real damage of this argument is not its futility. The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding. In fact, we do. No Senator should abet this Administration’s legalistic obfuscations by those such as Alberto Gonzales, John Yoo, and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years.

When a top legal adviser at our State Department cannot say that the waterboarding of an American is illegal, and our State Department cannot forcefully rule it out as a “technique” that might be okay for other countries’ foreign intelligence services to use against U.S. citizens, we see how far wrong this Administration has headed. When asked at a recent public debate whether he could imagine any circumstance in which waterboarding could be justified on an American national by a foreign intelligence service, John Bellinger of the State Department said, “one would have to apply the facts to the law” and when pressed he said that he was not willing to “include it or exclude it” and that he did not want to “get involved in abstract discussions.” That is so wrong that it is chilling.

When it comes to our core values – the things that make our country great and that define America’s place in the world – it does not depend on the circumstances. America, the great and good Nation that has been a beacon to the world on human rights, does not torture and should stand against torture.

That is not what America stands for. Indeed, the better example is set by the Army Field Manual, which instructs our forces to consider how we would react if what a soldier was about to do to someone was done to an American soldier.

In their recent letter to the nominee, Senators Warner, McCain, and Graham recognize, as I do and as I hope all Senators do, that: “Waterboarding, under any circumstances, represents a clear violation of U.S. law.”

Finally, when the Administration and others say that we cannot say whether America waterboards people because it would tip off our enemies, they have it precisely wrong. That is about as effective as Saddam Hussein hinting that he had weapons of mass destruction when he did not in order to impress his enemies. In refusing to say that we do not waterboard prisoners, we give license to others. When the United States cannot state clearly that waterboarding is torture and illegal and will not be tolerated, what does that mean for other governments, and what comfort does that provide the world’s most repressive regimes?

I wish that I could support Judge Mukasey’s nomination. I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a “confirmation contortion.” When many of us voted to confirm General Petreas, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President’s war policies. Just as I do not support this President’s Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power.

No one is more eager to restore strong leadership and independence to the Department of Justice than I. What we need most right now is an Attorney General who believes and understands that there must be limitations on Executive power. America needs to be certain of the bedrock principles in our laws and our values that no President and no American can be authorized to violate. Accordingly, I vote no on the President’s nomination.

No surprise here, but the Senate Judiciary Committee today voted to send Michael Mukasey on to a full Senate vote for confirmation as Attorney General.

The vote was 11 to 8, with two Democrats, Senators Charles E. Schumer of New York and Dianne Feinstein of California, joining all nine Republicans on the panel in backing the nominee. Eight Democrats voted against Mr. Mukasey.

Feinstein's vote is predictable. She hasn't been a Democrat or a progressive for years, in my opinion, with her constant joining with Senators like Orrin Hatch to promote more tough on crime bills.

Schumer is more of a disappointment. Not because he is a progressive on criminal justice issues and this is a change of hat for him -- he isn't -- but because it seems like he voted for Mukasey just to avoid looking like a jerk for suggesting his name in the first place. In other words, he cares more about his reputation than what's good for the Justice Department.

Of course, Schumer says otherwise.

Update: Here are Sen. Patrick Leahy and Dick Durbin's statements.

Alliance for Justice has an analysis up (pdf) of Attorney General nominee Michael Mukasey's written answers to the questions posed by the Senate Judiciary Committee. It includes the question, answer and AFJ's analysis.

Colorado Senator Ken Salazar said yesterday he might oppose Mukasey. Details on that here.

Crooks and Liars says Bush is playing the 9/11 card to force the Mukasey nomination and provides the video of Bush's latest comments.

Bump and Update (10/31): The show starts at 10:00 pm ET. It's Channel 107 on Comcast, check their website for other cable systems.

Original post (10/30)

Maybe someone will tell Attorney General nominee Michael Mukasey to watch Current TV tomorrow night at 10:00 pm ET.

On Wednesday, October 31st at 10pm ET/PT, Current TV gives viewers a real look at what Waterboarding entails when two ex-Survival, Escape, Resistance and Evasion (SERE) instructors administer a controversial interrogation technique to Current Vanguard Journalist Kaj Larsen.

More...

While everyone is focused on Michael Mukasey's refusal to acknowledge that waterboarding is torture, another story is being overlooked.

A must read: Wayne Barrett's latest in the Village Voice, No Skeletons in My Closet.

When Mukasey was nominated, I expressed concern about his closeness to Rudy Giuliani.That concern has just grown exponentially.

After reading Barrett, I'm wondering whether the reason Mukasey is willing to take on the Attorney General job for a short 14 months is because Rudy has promised to keep him in the spot should he become President.

Mukasey has said he'd recuse himself from the expected impending federal indictment of Bernie Kerik. But, as Barrett explains, Kerik is just one of many cases with connections to Rudy that the Justice Department will be handling. Mukasey's son, a partner in Bracewell-Guiliani, plays a key role in many of them.

There's also the question about whether Mukasey has been honest or complete in his description of his political activities on behalf of Rudy, particularly while he was a federal judge and not supposed to be politically active.

Here are but two examples: