As I noted earlier, Mukasey indicated early in the hearing that the criminal investigation of the CIA's destroyed torture tapes may well explore whether the interrogation techniques shown on those tapes were legal. But as Mukasey made clear, that may or may not happen.

So Sen. Sheldon Whitehouse (D-RI) wanted to know, is the Department of Justice investigating whether the sorts of techniques used by CIA agents were torture? And if not, why not?

Well, they aren't. And as for the why not, he and Mukasey went round and round on the question for two rounds of questioning. Here's Whitehouse's second try:

In this and the other exchange it became apparent that there were two justifications for Mukasey's stance.

The first you might call the real reason. It's one he succinctly described earlier when he said "I [am not] going to call into question what people do or have done, when it's not necessary to do so."

The second rested on a legal argument that was seemingly less self-justifying -- but he had real trouble getting it to stand up under Whitehouse's questioning.

The main issue, he argued, was whether the proper "authorizations" were given.

Well, isn't Mukasey's emphasis on "authorizations" really the Nuremberg defense? Whitehouse wanted to know. "I had authorization and therefore I'm immune from prosecution?"

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Michael Mukasey is attorney general in large part due to Sen. Chuck Schumer's (D-NY) support. And in his questions today, Schumer started by commending a number of Mukasey's actions (restarting the OPR investigation into the warrantless wiretapping program, tapping a well-qualified prosecutor to investigate the CIA tapes' destruction), but then said that he was "disappointed" in Mukasey in other ways. And he tried his best to give Mukasey a hand and pull him out of the swamp.

His question was simple. You've said that waterboarding is "repugnant." So, if it is repugnant, don't you think that a ban of waterboarding is a good thing? Wouldn't you support that?

Mukasey didn't take Schumer's hand. He said he'd need to mull it over. Here's the video:

Schumer was unhappy. "You have already stated something to be repugnant... Why could something “repugnant” not be outlawed?"

"Senator, I don't want to trivialize the question," he replied, "but I'll refrain from naming all the other things that I find repugnant." Whether something is repugnant to him, he said, is not a good basis for whether it should be outlawed. "I want to analyze it as a policy matter." He said that he didn't want to put his own "personal tastes" into his office; he wanted to hear everything there was to hear about it from all his advisers. Before that time, he couldn't say.

"I have to tell you how profoundly in this particular situation I disagree with you," Schumer closed.

Update: Here's the transcript:

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Sen. Dick Durbin (D-IL) picked up where Sen. Joe Biden (D-DE) left off. Does the attorney general really think that it depends on the circumstances when you can waterboard somebody?

Here's the video:

Durbin pressed the point that the Senate had, on a broad bipartisan basis, prohibited "such practices with the McCain amendment" (the 2005 Detainee Treatment Act).

But the Senate had also "voted down a bill that would prohibit waterboarding," Mukasey replied.

"You still think that the jury is out on whether the Senate believes that waterboarding is torture?" Durbin wanted to know.

"The question... is whether the Senate has spoken clearly enough in the legislation that it has passed...."

"Where is the lack of clarity in the McCain legislation?"

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Michael Mukasey finally got into the nitty gritty of how he thinks about torture, and he seemed to finally show his hand.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."

What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Marty Lederman blogs: "What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not 'cruel treatment' under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure)."

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

Update: Here's the transcript:

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Here's the most fruitful of the responses about waterboarding that the senators were able to elicit from Mukasey so far.

Sen. Ted Kennedy (D-MA) had a long wind up before delivering his punch. After detailing how objectionable waterboarding was, how it was clearly torture, as clearly as robbing a bank is stealing, he came out with: "Would waterboarding be torture if done to you?"

"I would feel that it was," Mukasey replied. But then he devolved into his practiced take which he detailed in his letter last night. He can't just come out and say that waterboarding is clearly torture when done to anyone, he says, "because of the office that I have." It was a brief moment of clarity.

Update: Actually, Mukasey's responses to two other questions, detailed above, proved even more clear.

Update: Here's the transcript:

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Michael Mukasey is not a man to live in the past. It's a much more difficult place.

Sen. Arlen Specter (R-PA) started his questions by asking about the President's Article II powers under the Constitution. Do you think that the President can break any law he pleases because he's the President -- including, say, statutes banning torture?

"I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids," Mukasey shot back.

"Well, he did just that when he violated the Foreign Intelligence Surveillance Act" Specter responded. "Didn't he?"

Well, "both of those issues have been brought within statutes," Mukasey responded, apparently hoping that he wouldn't have to discuss the stickier past.

"That's not the point," Specter pressed. "The point is that he acted in violation of statutes, didn't he?"

"I don't know," Mukasey conceded. Awkward.

"There's no dispute about that," isn't there? The law says you have to go to court to get a warrant for wiretapping and the administration didn't do that.

Mukasey then wound into a description of the alleged problems with FISA regarding foreign to foreign communications.

"But I'm talking about wiretapping U.S. citizens in the United States" Specter protested, before giving up, saying "Well, not getting very far there, let me move on...."

Update: Here's the transcript:

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In his first round of questioning this morning, Sen. Patrick Leahy (D-VT) asked a question that's been on everyone's mind: will the criminal investigation that's been launched into the destruction of the CIA's torture tapes also cover the techniques that were documented on those tapes?

Mukasey said, essentially, that it hasn't been ruled out. John Durham, the prosecutor who's been tapped to lead the investigation, he said, will proceed as in any other matter, "step by step." If "it leads to showing motive... then I'm sure it will be explored." He stressed again that Durham, an experienced prosecutor, was in charge (even if he's not completely independent) and that he's joined by an experienced FBI agent.

Update: Here's the transcript:

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Last time around, Attorney General Michael Mukasey had more than a little trouble telling the Senate Judiciary Committee whether waterboarding is torture. "If it amounts to torture, then it is not Constitutional" just wasn't cutting it.

But this time, he's coming ready. He laid it all out in a letter to the panel last night. When he sits down for his hearing this morning, he'll say... I can't tell you if it's torture, because we're not doing it now anyway and there's no use talking about it if we're not even doing it -- which doesn't mean that we won't do it, but we really probably won't.

Or as he puts it, if I may quickly summarize his 3-page letter:

"[I] have concluded that the interrogation techniques currently authorized in the CIA program comply with the law.... I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not be, used in the current program.... It is precisely because the issue is so important, and the questions so difficult, that I, as Attorney General, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never present themselves in the future."

The clear intended message here for the Democrats on the panel is that Mukasey would never approve waterboarding, but they're not going to get him to say why. Somehow I don't think they'll be completely satisfied. Especially if he repeats this line from his letter:

"There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question."

So -- what's up? Marty Lederman, a former lawyer in the Justice Department's Office of Legal Counsel, speculates that what's really driving Mukasey's refusal to address the question is that "such a repudiation would undermine the legal basis for other of the 'enhanced' CIA interrogation techniques" -- techniques such as stress positions, inducing hypothermia, sleep deprivation and the like.

Remember also that Mukasey has expressed confidence in Steven Bradbury, the current head of the Office of Legal Counsel, who has reportedly approved all these techniques (and waterboarding). And in his statement today, Mukasey seems to be saying above that he's approved them too (minus waterboarding). He supports the current system and doesn't want to rock the boat. With the most controversial technique eliminated, all this unwanted scrutiny will hopefully recede.

We'll be providing live updates of Mukasey's hearing, which starts at 10 this morning.

It's hard enough to get the facts straight when allegations are made. But everything gets all the more complicated in the Bush Administration's hall of mirrors; it's all pots and kettles.

Consider this dust-up between the Office of Special Counsel and the Justice Department. In one corner, you have Special Counsel Scott Bloch, who heads an obscure little office that is charged with investigating whistleblower complaints, Hatch Act violations, and the like -- but who is himself being investigated for retaliating against whistleblowers and politicizing his office. Oh, and he used a tech service called Geeks on Call to scrub his hard drive at work (he says all the info was personal). In the other corner, you have the Justice Department, and well, you know all about that.

In a letter to Attorney General Michael Mukasey last week, Bloch charged that the Department was blocking his probe of politicization in the DoJ, his investigation of U.S. Attorney David Iglesias' firing (was it because of his Navy reserve service?), and a whistleblower complaint against former U.S. attorney Rachel Paulose. Eric Black, who reported on the letter last night, has helpfully posted a copy here (pdf).

In the letter, Bloch complains that 1) after the Justice Department launched its own internal investigation of the U.S. attorney firings and politicization in the Department last spring, they asked him to back off, and 2) the DoJ has refused to investigate a whistleblower complaint against Paulose.

Bloch's job, at least under the Bush administration, is to write investigatory reports which the White House will then ignore. Tellingly, Bloch complains in the letter that he's been trying to get White House counsel Fred Fielding on the phone for two months and had no luck.

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As a preview of Attorney General Michael Mukasey's appearance before the Senate Judiciary Committee next Wednesday, all ten Democrats on the committee signed a letter to him today from Sen. Dick Durbin (D-IL) asking whether he can finally tell them whether he thinks waterboarding is torture or not.

During his confirmation hearing, Mukasey made his infamous "massive hedge" about whether the technique was torture. He promised to institute a review and has apparently followed through. "It has been over two months since then, ample time for you to study this issue and reach a conclusion," the Dems write.

They want answers to two different questions:

1. Is the use of waterboading as an interrogation technique illegal under U.S. law, including treaty obligations?

2. Based on your review of other coercive interrogation techniques and the legal analysis authorizing their use, what is your assessment of whether such techniques comply with the law?

The full letter is below.

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It's a date. The last time they tangoed, they stepped on each others' toes. But the Senate Judiciary Committee will be hearing again from Attorney General Mukasey, for the first time after his narrow confirmation, on January 30th.

Things started out rough for Attorney General Michael Mukasey.

First he only managed confirmation by the skin of his teeth, because he refused to brand waterboarding as torture. Then he ticked everybody off when the Justice Department asked Congress to shut down their investigations of the CIA torture tapes' destruction until the DoJ finished up. And then there's the KBR rape case.

But Mukasey's a man with a big heart and big plans. Or something like that. Roll Call reports (sub. req.) that Mukasey "has shelved any animosity he might feel toward Democrats."

Among the signs of good will: occasionally consulting with members of Congress (with Alberto Gonzales as your predecessor, it's easy to impress). He's already reached out to a number, Roll Call reports, including Sen. Sheldon Whitehouse (D-RI), whose questions caused all that waterboarding-trouble, and Sen. Patrick Leahy (D-VT). A Justice Department aide is quoted saying "The new attorney general’s view is whether we’re going to agree or disagree on the merits, I want to have a good personal relationship with Pat Leahy.”

That will be put to the test when Mukasey appears before the Senate Judicary Committee at the end of this month (Update: the hearing has been scheduled for January 30th). Leahy has promised to grill Mukasey about the CIA tapes investigation and his views on waterboarding. And a Leahy aide tells Roll Call that the proof is in the pudding: “The relationship between the attorney general and the Judiciary Committee is still developing, and there are outstanding requests from the chairman and others for information and cooperation.”

And about House Judiciary Committee Chair John Conyers (D-MI)? He got a "courtesy call," before Mukasey was confirmed and though "they got along personally, Justice Department aides said, the House is particularly partisan." So it seems that the charm offensive won't be concentrating on the House.

From The Swamp:

Mukasey announced today that he's appointing Chicago federal prosecutor Patrick Fitzgerald to the Attorney General's advisory committee of U.S. attorneys.

Fitzgerald was on the committee from 2001 until 2005, but his appointment to it preceded his service as special prosecutor in the Valerie Plame CIA leak investigation....

Gonzales... did not re-appoint Fitzgerald to the advisory panel, which counsels the attorney general on law enforcement issues.

The papers take a look at John Durham, the prosecutor Attorney General Michael Mukasey tapped to investigate whether anyone broke any laws by keeping secret and then destroying the CIA's torture tapes, and find that even if he doesn't have the same independence as Patrick Fitzgerald, he's made from the same stuff.

From The Los Angeles Times:

"Think of him as the second coming of Patrick Fitzgerald," said Jeffrey Meyer, a professor at Quinnipiac University law school in Hamden, Conn., who worked alongside Durham as a federal prosecutor for many years. "So far as I could tell, he does not have a political bone in his body. He is nothing but thorough and dogged in the way he pursues cases."

From The Washington Post:

Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut....

"He's Fitzgerald with a sense of humor," said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

A statement just out from House Judiciary Committee Chairman John Conyers (D-MI) hits on Mukasey's decision not to tap Durham as a special counsel:

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

Michael Mukasey's statement on opening a full-blown criminal investigation of the CIA tapes probe is below.

Interestingly, Durham has not been tapped as a special counsel (like Patrick Fitzgerald (pdf) was) -- rather, because the U.S. attorney from the Eastern District of Virginia recused his office from the probe, Durham will be serving as Acting United States Attorney for the Eastern District of Virginia.

Update: What this means, as Marty Lederman puts it, is that Durham is neither an "outside," nor "special," nor "independent" prosecutor. "Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey."

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The man Michael Mukasey chose to lead the CIA tapes probe is John Durham. Who is John Durham? Well, the short answer is a 30-year veteran prosecutor with some serious experience with tough prosecutions.

We've posted his work experience below, as passed along by the U.S. attorney's office in Connecticut, where Durham serves as the deputy.

As the AP puts it, "Durham has a reputation as one of the nation's most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI's use of mob informants in Boston and helped send several Connecticut public officials to prison."

Update: From The Washington Post:

Durham is well known in New England legal circles as a tough, publicity-averse prosecutor who has specialized in organized crime cases. Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants. He is a registered Republican, according to Connecticut voter records.

The Boston probe led to the 2002 racketeering conviction of retired FBI agent John J. Connolly Jr., who was the handler for gangster James "Whitey" Bulger, a former FBI informant who is now a fugitive.

Durham's history is below.

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Breaking from the AP:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case....

"The Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Durham is the deputy U.S. attorney in Connecticut, where he worked with Kevin O'Connor, who's currently the acting #3 at the department. We'll have more on him in a second.

Update: The AP doesn't have this quite right. Durham is not an "outside counsel."

Maybe his last letter got lost in the mail?

In a bit of epistolary throat-clearing, House oversight committee Chairman Henry Waxman (D-CA) wrote Attorney General Michael Mukasey today to reiterate his request two weeks ago. The White House has arbitrarily blocked former Special Counsel Patrick Fitzgerald from turning over records of his interviews during the Valerie Plame leak investigation of White House officials, including the President, Waxman wrote then, but it's your call, Mikey, not theirs, on whether to fork it over. Apparently Waxman got no response.

Waxman adds helpfully in his letter today (which you can read below) that since Scooter Libby has dropped his appeal, "there remains no further pending litigation associated with the Fitzgerald investigation."

He concludes: "I urge you to cooperate with Congress’ investigation into these unanswered questions."

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When news broke that the CIA had kept videotapes showing torture of detainees secret and then secretly destroyed them, Sen. Joe Biden (D-DE) was fast out of the gate: the scandal "leads right into the White House," he said, and the need for a special prosecutor was clear.

But that was about it. Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) was quick to dismiss the need for one, saying that Congressional inquiries were enough. And the hard-charging investigation led by the House intelligence committee seemed to indicate that might be true. When Rep. Rush Holt (D-NJ), a member of the House intelligence committee, wrote Attorney General Michael Mukasey to formally request the appointment of a special prosecutor, expectations were low.

As expected, Mukasey said no. Or as he put it in a letter to Congress Friday, "I am aware of no facts at present to suggest that Department attorneys cannot conduct this inquiry in an impartial manner."

But with the Department rebuffing Congressional inquiries, Rockefeller's rationale has been turned on its head. The momentum seems to have shifted.

On Friday, House Judiciary Committee Chairman John Conyers (D-MI) said in a statement that Mukasey's "disturbing" refusal to answer Congressional questions about the tapes' destruction "calls into question whether the Department of Justice is best able to investigate these matters.”

And the same day, Sen. Ted Kennedy (D-MA) echoed Sen. Biden's comments from the week before.

Put all that together and you now have the chairman of the House Judiciary Committee and two prominent members of the Senate Judiciary Committee leaning towards a special prosecutor. Whether that momentum builds any more depends largely on how successful the House intelligence committee is in defying the Justice Department's attempt to stifle its investigation. Senate Majority Leader Harry Reid (D-NV) has said that he would call for a special prosecutor if the committee's don't get cooperation.

Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) sent Attorney General Michael Mukasey a detailed list of questions about the Justice Department's knowledge of the CIA's torture tapes' destruction. What did DoJ officials know about the tapes while they existed? When did they learn they were to be destroyed? What communications did they have with the White House about it?

They were also eager to learn the details of the Justice Department's joint investigation with the CIA.

Today, Mukasey gave his reply: no. The Department "has a long-standing policy of declining to provide non-public information about pending matters," he wrote, in order to avoid "any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee's interests in this matter." You can read that letter here.

In a statement, Leahy responded that he was "disappointed" by Mukasey's reply (see below) and promised that he'd ask Mukasey about the tapes at the committee's first oversight hearing, which he said would be in the new year.

Apparently Mukasey sent similar letters today to a number of other Democratic lawmakers who'd asked about the tapes, in a move that The Washington Post calls a "sharp rebuff." It is at least a contrast to Alberto Gonzales, who would ignore Congressional letters and requests for months before refusing to provide information.

Leahy's statement is below.

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You didn't think there'd be a scandal involving the destruction of potential evidence of torture without Pat Leahy and Arlen Specter getting involved, did you?

Leahy and Specter, the leaders of the Senate Judiciary Committee, wrote yesterday to Attorney General Michael Mukasey requesting a thorough understanding of the Justice Department's inquiry into the CIA's destruction of secret interrogation tapes. If Mukasey ever had a honeymoon at DoJ, it's already a distant memory.

The Dyspeptic Duo demand to know what the Justice Department knew about the tapes before their destruction -- after all, DoJ warned against junking them, so someone at DoJ knew they existed. And in a press release accompanying the letter, they threaten to turn next week's confirmation hearing for Mukasey's would-be deputy, Mark Filip, into "a public forum for Senators to query Filip about the Department of Justice’s reported investigation."

Full text of the letter follows the jump.

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Just in time for the Justice Department probe into the destruction of videotapes of CIA interrogations, Sen. Russ Feingold (D-WI) is cutting to the heart of the issue.

Feingold today sent a letter to Attorney General Michael Mukasey asking for his analysis of the legality of the CIA's detention and interrogation program. At his confirmation hearings, Mukasey pleaded ignorance as to whether waterboarding is torture, saying he needed to be confirmed as attorney general before he could venture an opinion on the subject.

Feingold writes:

It is my hope that, under your leadership, the Department of Justice will take a fresh look at the CIA’s program, and that you will urge the President not to veto legislation that would end the use of so-called “alternative interrogation techniques.” I request that you provide current and any past Department legal analyses to Congress, and that you provide your views on the program to Congress at the earliest possible date.

There's legislation pending that would restrict CIA interrogation techniques to the Geneva Conventions-compliant provisions of the Army Field Manual on interrogation, a measure that the White House opposes.

More pertinently, given the interrogation-tapes controversy, Mukasey is in a real bind on the torture question. If he finds the techniques used by the CIA to have been torture, which he said is illegal, then he will come under tremendous pressure to prosecute the interrogators and possibly even the administration officials who approved the illegal behavior. If he doesn't conclude that they're torture, he'll be embracing a politically convenient and euphemistic definition of the law. Expect Mukasey to send a big fruitcake to John Yoo and David Addington this Christmas for bringing him to this point.

Feingolds's full letter is after the jump.

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