Ditto goes for the administration's warrantless wiretapping program, Mukasey added later, when asked by Rep. Jerrold Nadler (D-NY) whether he would appoint a special counsel to investigate.
The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.
Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).
NADLER: Mr. Attorney General, I was interested to hear you say a moment ago that if the president ordered someone to do something against the clear intent of Congress, that's outside the law.
The FISA act said a person is guilty of an offense if he intentionally, one, engages in electronic surveillance under the color of law, except as authorized by statute.
Now, the president admitted that he did that. Every 45 days he signed an authorization to direct the surveillance of people in the United States without a warrant as required by the FISA act.
Now, I had previously asked your predecessor, Attorney General Gonzales, given this apparent prima facie case that the president and people under him, including the prior attorney general, engaged in felonious conduct by doing so, that he appoint a special counsel to investigate the warrantless surveillance of Americans.
And I recently reiterated that request to you.
Now in your testimony before the Senate last week, you responded to Senator Leahy's questions on whether the president violated the law by authorizing wireless surveillance by stating that you, quote, "don't know whether the president acted in violation of statutes," unquote, including FISA.
I believe we need to know the answer: Did the president, with, as has been reported, the advice of the Justice Department, break the law?
I believe the answer is clear that he did.
Given the extraordinary circumstances involved, allegations of criminal conduct by the president and other high-ranking officials and the possibility of conflict at the Justice Department, will you now agree to appoint outside special counsel so that we finally will get an answer to this question?
MUKASEY: The direct answer to your question is no, I will not.
NADLER: Because?
MUKASEY: Beg pardon?
NADLER: Because?
MUKASEY: Because -- because there is one detail that was omitted, and it may very well have been my fault in saying I didn't know when I'd forgotten or overlooked.
There was in place an order -- I'm sorry, an opinion of the Justice Department describing the legal basis for the program to which you refer. That included the authorization of the use of military force, as a congressional statute on which it was relied that that behavior was legal.
I understand that there are views on both sides of that -- strong ones.
NADLER: Well, there are views -- let's put it this way: The Supreme Court in the Hamdan case, in a case just about directly on point, ruled that -- for reasons I'm not going to get into now, we don't have time in five minutes -- that the use of the two excuses by the Justice Department, namely the president's inherent powers under Article II and the authorization for the use of military force as justification, was not, in fact, justification. The president is still bound by the law. The law was not repealed by implication by the AUMF and that that's not sufficient.
Now, the Justice Department, in a letter to congressman -- to congressman, excuse me -- to Senator Schumer recited these letters as a refutation by a host of constitutional scholars against that.
My second question, then, when this is -- on behalf of the Justice Department, in effect representing the president, although a step removed, you say that this is justified, that it's not illegal, for the reasons stated.
NADLER: Lots of other people say it's clearly illegal.
Normally, we would have that settled in a court. A court would decided whether something's legal or not when there's a dispute.
But when you attempt to get this into court -- you can't get it into court by prosecution, because you're not going to prosecute or appoint the special counsel. But when you attempt to get it into court by victims or alleged victims, plaintiffs suing in civil court, then the government comes out and says, "Oh, you can't get into court alleging violation of your rights through violation of FISA because of the state secrets privilege."
So now you've set up a situation where the president and the attorney general assert the president's right to do something which seems to a lot of people to a lot of people to be a violation of law and there is no way of checking that.
In other words, there's no way of getting -- well, let me ask you a different question. Under this, is there any way -- and would you agree that the state secrets privilege has to yield because otherwise there is no way for Congress or the courts or anybody to have any check on the president's claimed power?
MUKASEY: The state secrets privilege -- just to answer the last question first -- the state secrets privilege is invoked by the government and backup is provided for its invocation.
To my knowledge, that backup has been sustained...
(CROSSTALK)
NADLER: Well, the state secrets privilege has often been used where there's no backup provided, simply an affidavit.
Would you agree that where the state asserts state privilege -- state secrets, that the court ought to be provided with information in order to rule on the validity of the state secrets privilege?
MUKASEY: The court can be provided with and is provided with information relating to the invocation of the state secrets privilege and an explanation of the basis for it, and to rule on that basis.
NADLER: But the court often rules with -- simply on an affidavit without seeing the documents to judge for itself whether they deserve -- whether they would threaten national security were they revealed.
Would you agree that the court ought to see that and make that decision?
MUKASEY: I believe that courts see affidavits in some cases, affidavits and documents in others, and have what they consider to be an ample basis because they rule on that basis for a ruling.
MUKASEY: Sometimes things are quite clear.
NADLER: And sometimes they're not.
MUKASEY: And sometimes they're not.
NADLER: And, lastly, we have heard hearings in this committee on rendition -- on so-called extraordinary rendition. On the Maher Arar case we're going to hold further hearings.
Would you -- and we've been told that we got assurances from Syria that Mr. Arar would not be tortured when he was sent there, which of course proved not to be true.
Would you commit or agree that upon request, which will be forthcoming, that you will send someone from the department for a hearing here to answer the questions, "Who obtained these assurances? From whom were they obtained? What assurances were given?" so that we can get to the -- begin to get to the bottom of this rather horrendous case?
MUKASEY: It's my understanding that some of this has been the subject of classified briefings to various members of this committee and other committees.
It's also my understanding -- and this is based on an exchange of notes between us and Canada that became public, not because of anything that anybody wanted to do voluntarily -- that Mr. Arar is still on the no-fly list.
NADLER: Yes, he is; improperly so, in my opinion.
MUKASEY: Beg pardon?
NADLER: I've seen...
CONYERS: The gentleman's time may have expired.
NADLER: Let me just say, I've seen the confidential documents. He shouldn't be on the no-fly list. But we have not heard about the assurances from Syria, even on a classified basis. We need to know that.
The rule of law was wounded by the Bush administration last Thursday.
Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey wrongly insisted that the Justice Department was legally barred from investigating whether CIA officials had committed torture in 2002-2003 by employing waterboarding against three al Qaeda detainees at a secret detention site: Khalid Shaikh Mohammed; Abu Zubaydah; and, Abd al-Rahim al-Nashiri. Waterboarding, the attorney general asserted to the House Committee, "cannot possibly be the subject of ... a Justice Department investigation" because its use had been approved by the department's Office of Legal Counsel (OLC) during the years in question.
Mr. Mukasey added that to open an investigation "would mean that the same department that authorized the program would now consider prosecuting someone who followed that advice."
Terrified of appearing weak on national security, Congress tacitly endorsed the attorney general's ill-conceived pronouncement. The law raises no obstacle to investigating or prosecuting the CIA's waterboarding as torture, even if its legality had been vetted by OLC. Ignorance of the law is no defense, especially when invoked by government officials obligated to know and to uphold the law. CIA interrogators either knew or should have known that waterboarding was criminal irrespective of contrary advice.
The federal criminal code unambiguously stipulates: "Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both," Jurisdiction over the offense attaches if "the alleged offender is a national of the United States." Torture is defined as an act committed by a person acting under color of law "specifically intended to inflict severe physical or mental pain... upon another person within his custody or physical control."
In turn, severe mental pain and suffering is defined as "prolonged mental harm" occasioned by "the threat of imminent death." Waterboarding does precisely that.
It entails strapping a detainee to an inclined board with his head lower than his feet. Water is then poured over the detainee's mouth and nose, which are covered with cellophane or cloth, to create a sensation of drowning, i.e., death by suffocation in water.
Waterboarding was an odious feature of the Spanish Inquisition. It has been uniformly prosecuted as torture by the United States military for more than a century. It has been condemned by the State Department when utilized by despots. Former Secretary of Homeland Security Tom Ridge has categorically denounced waterboarding as torture.
In a Memorandum Opinion prepared in August 2002 and otherwise, nevertheless, OLC advised the CIA that waterboarding would not violate the criminal prohibition against torture. That opinion was later repudiated by OLC in a Memorandum Opinion for the Deputy Attorney General dated Dec. 30, 2004. Moreover, OLC Opinions do not carry the authority of the attorney general, who speaks through opinions over his own name.
Mr. Mukasey erroneously asserted the "mistake of law" defense to justify shielding the CIA's waterboarding from prosecution. As elaborated by the United States Court of Appeals for the District of Columbia Circuit in United States v. Barker (1976), the defense requires proof that the accused acted in reasonable reliance on the advice of government officials entrusted with enforcing the law that was violated. Ignorance of the law or following orders ordinarily does not excuse illegal conduct. In Barker, a divided court of appeals sustained a "mistake of law" defense asserted by "foot soldiers" in the Watergate debacle. Both had been recruited as private citizens by E. Howard Hunt, a White House official, to burglarize the office of Daniel Ellsberg's psychiatrist purportedly to obtain national security information on an alleged traitor on behalf of the government.
The CIA officials implicated in waterboarding cannot claim the "mistake of law" protection of Barker. They were never ordered to employ waterboarding to extract information. They would not have been disciplined for desisting. Waterboarding is unnecessary for the collection of intelligence. The FBI and the military forswear the method. The CIA's interrogators were versed in the law of torture, which hovers over their treatment of detainees. They were government officials sworn to uphold the law — not private citizens as in Barker — and the illegality of waterboarding was clear. They could have insisted on an official opinion of the attorney general, as opposed to a less authoritative OLC memorandum.
If equities militate in favor of leniency, President Bush may pardon the CIA's offenders, even before indictment, and accept full political responsibility. But the standards of government behavior should not be softened if the rule of law is to be honored.
During Watergate, the following exchange occurred between Sen. Herman Talmadge, Georgia Democrat, and White House adviser John Ehrlichman over the claim that the president could break and enter homes to protect the national security:
Sen. Talmadge: Do you remember when we were in law school, we studied a famous principle of law that came from England and also is well known in this country, that no matter how humble a man's cottage is, that even the King of England cannot enter without his consent?
Mr. Ehrlichman: I am afraid that has been considerably eroded over the years, has it not?
Sen. Talmadge: Down in my country we still think it is a pretty legitimate principle of law.
Wouldn't it be heartening to hear Members of Congress initiate corresponding exchanges over waterboarding?
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
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