Mukasey’s Comment on the Surveillance and Torture Program Leads to Congressional Confrontation

Attorney General Michael Mukasey has made new comments excusing both the unlawful surveillance program and the torture program. In his most recent statement, Mukasey dismisses the need for a pardon since “[t]here is absolutely no evidence anybody who rendered a legal opinion either with respect to surveillance or with respect to interrogation policy did so for any reason other than to protect the security of the country and in the belief that he or she was doing something lawful.” House Judiciary Committee Chairman Rep. John Conyers, D-Michigan, and Civil Liberties Subcommittee Chairman Jerrold Nadler, D-New York were irate and dashed off a letter demanding an explanation.

Conyers and Nadler are two democratic leaders who would take an aggressive stand on these programs if they were given free hand. They state: “We are troubled by the breadth of your statement and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law,” the congressmen wrote. They noted the much publicized internal administration debates over the policies. Our greatest concern, however, is that your statement appears to be prejudging numerous ongoing investigations.”

It is important to note that these investigations do not include a serious criminal investigation or impeachment element, which have been taken off the table. The programs are being investigated by the Justice Department’s Inspector General’s office and there is a special counsel on the torture program. Nevertheless, it is highly improper for an Attorney General to comment on the subject of such investigations. Of course, it is a bit strange given this Administration’s signature “no comment due to pending investigations” line in scandals like the Plame affair.

What is most galling is that Mukasey has never answered the question on torture put to him during his confirmation hearing. After claiming (implausibly) that he was not familiar with the term waterboarding, he then (after it was defined for him) refused to answer the simple legal question of whether waterboarding had been defined as a crime. Now, while he has refused to admit that waterboarding is a crime, he feels perfectly comfortable in dismissing any notion of a pardonable crime.

Moreover, the Justice Department routinely rejects claims from targets that they had a good reason to commit a crime or that they did not know that an act was criminal. The fact that these people thought that they were helping the country in the commission of a crime is no defense. Many criminals, including war criminals, insist that they are patriots.

What is particularly exasperating is that, after blocking any criminal investigation, Mukasey is now undermining even a non-criminal investigation. The reason is obvious. History will record that Mukasey, who has portrayed himself as independent and utterly faithful to the law, worked to protect the President and his Administration from a crime hiding in plain view. It is a poor legacy — made worse if these investigations show that the programs were unlawful.

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