| | Lawmakers 'troubled' by Mukasey's 'blanket conclusions' on terror probes
 Attorney General Michael Mukasey scoffs at the notion that President Bush is on his way to issuing blanket pardons to government officials who tread on shaky legal ground in their involvement with controversial techniques like enhanced interrogation, extraordinary rendition and domestic surveillance.
Two lawmakers who have spent years exploring those most controversial policies of the Bush administration wonder how he can be so sure.
Reps. John Conyers (D-MI) and Jerold Nadler (D-NY) tell Mukasey they are "troubled" by the attorney general's "blanket conclusion that everyone involved in approving these policies believed they were acting within the law." The lawmakers -- who chair the House Judiciary Committee and its Constitution, Civil Rights and Civil Liberties Subcommittee -- sent a letter to Mukasey Thursday asking him to explain himself.
Mukasey told reporters on Wednesday that there was "no evidence" that those involved in crafting the allegedly illegal counterterrorism policies "did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful."
The attorney general has refused to launch investigations into the use of waterboarding, which many observers consider torture in violation of the Geneva Conventions. And under his lead the Justice Department continues to work to block civil lawsuits challenging the National Security Agency's warrantless surveillance of Americans, which President Bush authorized in contravention to the Foreign Intelligence Surveillance Act.
Some conservatives fear President-elect Barack Obama's Attorney General nominee Eric Holder may seek criminal prosecutions of officials involved in these programs and are urging Bush to preemptively pardon all officials involved.
Conyers and Nadler remind Mukasey that the Justice Department and NSA inspectors general are looking into the authorizations underlying the warrantless wiretapping program to see if any violations of law or agency policy were committed. They also note the substantial evidence of debate within the administration over the legality of its tactics.
The public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General Comey that the Department would be “ashamed” if the world learned of the legal advice it had given on torture issues. Indeed, FBI interrogators were so troubled by some approved interrogation methods that they refused to participate, as the Department’s own Inspector General has described. Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to “If the detainee dies, you’re doing it wrong” – or the Department lawyers who advised him – justifiably believed that approach comported with the law? A Firedoglake blogger sees ulterior motives in Mukasey's statement.
"I think he is trying to shift the paradigm. Right now, it's these guys did something wrong and if Bush doesn't pardon them, then Obama ought to indict them, and if Obama doesn't indict them, he is a complicit wuss," writes looseheadprop. "If Mukasy's version gets any traction, Bush does not pardon, Obama does not indict and it all just fades away. Mukasey is demonstrating to Obama that he knows how the game is played."
The full letter from Conyers and Nadler is reprinted below:
Dear Mr. Attorney General:
We read with interest your statements to the press yesterday that “[t]here is absolutely no evidence that 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,”’
While this statement may well be true regarding many of those in the Department of Justice and the Administration’s broader national security apparatus who approved counterterrorism policies and methods, 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 public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General Comey that the Department would be “ashamed” if the world learned of the legal advice it had given on torture issues. Indeed, FBI interrogators were so troubled by some approved interrogation methods that they refused to participate, as the Department’s own Inspector General has described. Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to “If the detainee dies, you’re doing it wrong” – or the Department lawyers who advised him – justifiably believed that approach comported with the law?
The much-discussed effort by then White House counsel Alberto Gonzales and others to circumvent Mr. Comey’s authority as Acting Attorney General by confronting John Ashcroft in his hospital bed also indicates serious ethical and legal disagreement within the Department and the Administration on these matters, and leaves room for an ultimate conclusion that some individuals may well have understood that they were circumventing legal or ethical requirements. One Inspector General report has already found that former Attorney General Gonzales mishandled classified documents regarding NSA surveillance programs, and serious questions about that matter remain unanswered and reportedly under investigation.
Our greatest concern, however, is that your statement appears to be pre-judging numerous ongoing investigations. As you know, a Congressionally-mandated review of the NSA’s warrantless surveillance program is currently underway by the Inspectors General of agencies involved, including the Department of Justice. In addition, the Department’s Office of Professional Responsibility is reportedly probing “whether the DOJ attorneys who were involved [in approving NSA surveillance programs] complied with their ethical obligations of providing competent legal advice to their client and of adhering to their duty of candor to the court.” Other reports suggest the existence of other relevant inquiries.
Accordingly, please explain the basis for your blanket conclusion that all Department actors believed their conduct in counterterrorism matters was lawful. If relevant Department probes – or other secret inquiries such as the widely-reported but never published 2004 Special Review by the CIA Inspector General – have been completed and provide the basis for your statement, please state when they have been completed and describe their conclusions and any action you have taken in response. To the extent such reports are classified, we are willing to make arrangements to receive this information in an appropriate fashion. If, on further reflection, you believe that your statement was in any part premature or overly broad, please so indicate.
Thank you very much for your attention to this matter. Please direct your response to the Judiciary Committee office at 2138 Rayburn House Office Building no later than Friday, December 12, 2008.
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