Chairman Patrick Leahy and the ranking member Arlen Specter presided. Also present were Senators Jon Kyl, Richard Durbin, Diane Feinstein, Joe Biden, Edward Kennedy, Orrin Hatch, Charles Schumer, Charles Grassley, John Sessions, Herb Kohl.
In his opening statement Judiciary Committee Chairman Senator Patrick Leahy said that the state of the Department of Justice has declined to the same state as the “dark days” following Watergate. He angrily emphasized torture, zooming in on waterboarding, “Tragically this administration has so twisted America’s role , law and values that our own State Department, our military officers, and apparently, Americas top law enforcement officer, are now instructed by the White House not to say that waterboarding is torture and illegal.”
Waterboarding and other interrogation techniques took center stage. Most of the first questions from each senator focused on that topic.
In his opening statement ranking member Arlen Specter said that Congress should endeavor to “define the parameters” of waterboarding. Specifically he said that Congress should hold hearings on whether “the CIA should be limited to the Army Field Manual.” He also made a brief reference to the contempt citations Congress is considering for White House Counsel Harriet Myers and Chief of Staff Joshua Bolten.
Mukasey read about a fourth of his opening statement focusing on future appointments of Justice officials and waterboarding. Mukasey said that because waterboarding is not currently authorized for use by the CIA and “may never be authorized,” he felt it was not right to comment on it’s legality until he was faced by concrete facts. In response to a question from Sen. John Sessions, Mukasey said that he is not authorized to speak about incidents that have happened in the past declining to comment on use of waterboarding by CIA agents in the past. He did say that the abuse of prisoners and use of waterboarding is not widespread.
Democratic members, specifically Edward Kennedy scolded Mukasey for refusing to comment on the legality or authorization of waterboarding. He asked bluntly, “would waterboarding be torture if it was done to you?”
Mukasey answered, “I would feel that it was.” And proceeded to deconstruct Kennedy’s reasoning, evading a straight answer. Later on he did say that certain techniques are clearly illegal such as maiming or raping a subject.
Mukasey said the the heinousness, or “shocking the conscience of the American people,” of certain interrogation techniques should be balanced against the value of the information to be gained by interrogation. Senator Joe Biden who had asked the question leading to this answer repeated the phrase “shocking the conscience” saying he had never heard anyone in the Justice Department approach the value of potential torture in that way.
The Department of Justice investigation into the destruction of tapes made of interrogations came up, but only briefly as Mukasey said he should not comment in depth about an ongoing investigation. The committee asked to be updated.
Iowa Senator Charles Grassley brought up a Department of Justice opposition to a Senate bill protecting whistleblowers with security clearance, allowing them to report wrongdoing while keeping classified information secret. Mukasey said that the Senate’s idea ignored a chain of command and left out the president.
Illegal immigration and crime prevention programs also came up. Mukasey said that deportation and prosecution of illegal immigrants depends on the specific challenges faced on the border.
