Ban Torture

Attorney General Michael Mukasey testified before the House Judiciary Committee on February 7th. Essentially, anyone who follows a Justice Department opinion is exempt from investigation, even if the opinion authorized illegal activities. Since the opinion authorizing the use of waterboarding and other enhanced interrogation techniques is classified, so no one else can investigate either.

Below is a transcript of Mukasey’s response as to whether he would investigate. Thanks to EmptyWheel and The Harvard Anti-Torture Coalition:

John Conyers (Chairman): Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

Michael 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 the CIA program at the time that it was done, was the subject of a Department of Justice opinion, through the OLC (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 justifly 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 opinion changes or indeed the political winds change. And that’s not something that I think would be appropriate and that’s not something that I will do.

John Conyers: Are you prepared to let us get a copy of the OLC opinion?

Michael Mukasey: The OLC 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 the 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.

John Conyers: Well every member of this committee is cleared for top secret information.

Michael Mukasey: The opinions themselves dealt with a program that…to the extent the opinions themselves deal with the 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.