Well, not that there was much mystery about it, but Attorney General Michael Mukasey immediately put any ambiguity to rest when he began his testimony before the House Judiciary Committee this morning.
Chairman John Conyers (D-MI) put it to him: since administration officials have disclosed that CIA agents waterboarded three detainees, "are you ready to start a criminal investigation?"
"No, I am not," was the direct answer.
His reasoning was a repeat of his answer [ http://tpmmuckraker.talkingpointsmemo.com/2008/01/whitehouse_to_mukasey_why_not.php ] to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department "cannot possibly" investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.
Update: Here's video:
[view at the source link last below]
Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.
Update: A transcript of the exchange is below.
CONYERS: Thank you very much, Mr. Attorney General. Let me ask you, have you any additional comments to make about the issue of waterboarding now that the CIA director has confirmed that that has, in effect, happened in -- under our government?
MUKASEY: If you wish to address a question to that, I'm happy to answer a question. I could simply talk and then risk not answering the question that you had in mind.
MUKASEY: So if you wish to pose a particular question, fine. I'm prepared to answer particular questions relating to that.
CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?
MUKASEY: That's a direct question, and I will give a direct answer.
No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.
For me to use the occasion of the disclosure that that technique was once part of the CIA program -- an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so.
That would put in question not only that opinion, but also any other opinion from the Justice Department.
Essentially, it would tell people: "You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change." And that's not something that I think would be appropriate and it's not something I will do.
CONYERS: Are you prepared to let us get a copy of the Office of Legal Counsel opinion?
MUKASEY: The Office of Legal Counsel opinion discusses particular techniques that were part of what remains a classified program.
We have, I believe, provided an unclassified discussion of general legal principles -- did it back in 2004. And we have provided some classified briefings with regard to the legal reasoning underlying opinions, and are prepared to continue to do so.
But the opinions themselves can't simply be turned over because they discuss not simply legal reasoning, but the program itself, which remains classified.
CONYERS: Well, every member of this committee is cleared for top secret information.
MUKASEY: The opinions themselves dealt with a program that -- to the extent the opinions themselves deal with a current -- opinions relating to a past program cannot simply be disclosed in that fashion. They can be the subject of briefings, and have been. We can't simply turn them over.
CONYERS: Well, can we meet and find out what it is you're basing the response to my question?
MUKASEY: I think the question was whether I was going to open a criminal investigation because it's now been disclosed that waterboarding was part of the program.
And what I've said is that waterboarding, because it was authorized to be part of the program, pursuant to approach -- that it was authorized to be part of the CIA program, cannot possibly be the subject of a criminal -- a Justice Department investigation, because that would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice.
MUKASEY: That won't change whether letters are disclosed or not disclosed.
CONYERS: Well, what we're trying to do is make ourselves conversant with the basis of the response that you gave to my question. So there must be some way, between the Department of Justice and the House Judiciary Committee, that we can be made more aware -- we've requested this document before -- of the document on which you base your response.
MUKASEY: The response about a criminal investigation doesn't really depend on the particular content of the document. It depends on their having been an opinion that defined and authorized the limits of a particular program that is now disclosed included waterboarding at that time. It's no longer part of the program; that's also been disclosed, but that doesn't change the contents of the letter.
That said, I'm sure that we can talk about possible additional discussion of what is in the letters between the department and members of this committee. My understanding is there had been ongoing discussion with members of various committees, including particularly the Intelligence Committees, but I was not aware -- there may well very well have been discussions with members of the committee. I'm not certain as I sit here.
CONYERS: Well, we'll pretend that we've never asked for this before and we'll start right now. Thank you very much.
surprise NOT. CIA Mistaken on 'High-Value' Detainee, Document Shows
An al-Qaeda associate captured by the CIA and subjected to harsh interrogation techniques said his jailers later told him they had mistakenly thought he was the No. 3 man in the organization's hierarchy and a partner of Osama bin Laden, according to newly released excerpts from a 2007 hearing.
"They told me, 'Sorry, we discover that you are not Number 3, not a partner, not even a fighter,' " said Abu Zubaida, speaking in broken English, according to the new transcript of a Combatant Status Review Tribunal held at the U.S. military prison in Guantanamo Bay, Cuba.
President George W. Bush described Abu Zubaida in 2002 as "al-Qaeda's chief of operations." Intelligence, military and law enforcement sources told The Washington Post this year that officials later concluded he was a Pakistan-based "fixer" for radical Islamist ideologues, but not a formal member of al-Qaeda, much less one of its leaders.
Abu Zubaida, a nom de guerre for Zayn al-Abidin Muhammed Hussein, told the 2007 panel of military officers at the detention facility in Cuba that "doctors told me that I nearly died four times" and that he endured "months of suffering and torture" on the false premise that he was an al-Qaeda leader.
Abu Zubaida, 38, was subjected 83 times to waterboarding, a technique that leads victims to believe they are drowning and that has been widely condemned as torture. The Palestinian was held at a secret CIA facility after his capture in Pakistan in March 2002.
The Abu Zubaida transcript, and those of five other "high-value detainees," including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, were released in response to a Freedom of Information Act request and lawsuit by the American Civil Liberties Union. Versions of the transcripts were released by the Pentagon in 2007.
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