Schiff Questions Attorney General about Torture

Official Seal of the US House of Representatives

Friday, February 08, 2008 Contact: Sean Oblack (202) 225-4176

Schiff Questions Attorney General about Torture

WASHINGTON, DC – At a hearing late yesterday afternoon, Rep. Adam Schiff questioned United States Attorney General Michael Mukasey regarding the Justice Department’s refusal to investigate whether or not laws prohibiting torture were violated when the CIA used the technique of waterboarding in interrogations of suspected terrorists.  The pointed exchange between Rep. Schiff and Attorney General Mukasey is below, and a video can be view by clicking here.   

SCHIFF: Mr. Attorney General, I appreciate your being here. As a former member of the department, I am delighted that there's new leadership at the department.

I am gravely concerned, though, about your testimony on the torture issue, which I find murky, ambiguous, and which establishes no bright line.

I'm concerned about it for what it says to our own personnel and I'm concerned about it for what it says to the rest of the world.

And I think it will be very hard for you to make the argument with other nations, when our troops are captured on the battlefield, that they cannot torture because we don't torture.

I think our argument will be undermined by any ambiguity on that subject here at home.

And I believe that the buck really stops with you, Mr. Attorney General. I don't think that it can be delegated to a relatively anonymous attorney at the Office of Legal Counsel to decide what is lawful and what isn't lawful.

What I would like to ask you is the following: Shouldn't it be the job of the attorney general to investigate whether the law has been violated, notwithstanding whether there is an opinion by a lawyer at the DOJ that believes otherwise?

Shouldn't it be the responsibility of the attorney general to investigate whether the law has been broken?

And, if the law has been broken, then come before the American people and say: The law was broken; people were tortured in violation of the law; we have curtailed that practice; and I am recommending either, A, that those responsible be prosecuted or, B, that those responsible not be prosecuted because they acted in good-faith reliance on an opinion; or that they be prosecuted and the president consider the power of the pardon.

But to abdicate, in my view, to say that, because of an opinion of legal counsel, we don't need to investigate whether the law was broken, seems to me a belittling of your responsibility as attorney general. And I wish you would comment on that.

MUKASEY: Generally, I've resisted requests to comment on vast, unfocused questions.

SCHIFF: Well, let me focus the question. Why don't you investigate whether the law was broken, and then make a determination about whether prosecution is warranted, instead of taking a position you're not even going to investigate whether the law was broken?

MUKASEY: The only signal for the conduct of such an investigation is the disclosure that activity that some people claim is illegal but is in fact the subject of an opinion, namely that it was legal for inclusion in the CIA interrogation program -- that's the only signal for the opening of an investigation.

That cannot signal the opening of an investigation without telling people that they cannot rely on Justice Department opinions.

SCHIFF: Mr. Mukasey, are you saying...

MUKASEY: Also...

SCHIFF: Mr. Mukasey -- because I have a limited amount of time and I want to be very specific in my questions -- are you saying that, even if you believe that the law was violated, you lack the power to open an investigation into that?

MUKASEY: If I believe that a particular practice is unlawful, then, if it's presented to me in concrete terms, I can steps to say that it's unlawful, going forward.

SCHIFF: But we're presenting...


SCHIFF: Mr. Attorney General...

MUKASEY: One comment that you made that is very portentous, and needs to be corrected, and that is the suggestion that so much as a line of what I said endangers American troops. American troops fight in uniform...

SCHIFF: I understand that. I am not...


SCHIFF: Mr. Attorney General, I am not trying to...

MUKASEY: The Geneva Conventions...

SCHIFF: I am not...


(UNKNOWN): Mr. Chairman, can he answer the question?

SCHIFF: Yes, but it is my time. I'd like to ask the question. And the attorney general asked for a specific question.

I am not, in any way, trying to make equivocal -- or equivalent -- our troops in the field, and what Al Qaida is doing. Don't even go there, Mr. Attorney General.

But what I am saying is, if we don't establish a bright line, in this country, that we don't torture, then it makes it very hard for us to argue to other countries that they shouldn't torture our people, period.

And I would still like an answer to my question. Why doesn't the attorney general of the United States have the power, notwithstanding a subordinate lawyer in the Office of Legal Counsel, to investigate whether a crime has been committed, if you believe that torture has been committed, in violation of the law?

Why wouldn't you have the power to investigate that?

MUKASEY: We have a bright line. We bar the torture. The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounced on it one way or the other, as I think I...

SCHIFF: And you think that's a bright line that we can hold up to the rest of the world, that it depends on whether it's part of a program authorized by an attorney in the Office of Legal Counsel?

Is that the standard we would ask the rest of the world to hold up?

MUKASEY: We have and do defend our position before the rest of the world. We have people in the State Department who do a superb job at that. And we will continue to do that.

SCHIFF: Does the definition of torture...

(UNKNOWN): Mr. Chairman, time is...

SCHIFF: If I can ask one last question, Mr. Chairman?

You've said, in your Senate testimony, that -- I believe -- that, if you were being waterboarded, you would consider it torture.

Does the definition of torture depend on who is being tortured or the circumstances in which they are being tortured?

MUKASEY: I said, in my Senate testimony, that it would seem like torture to me. I said that as part of a much larger amount of testimony that indicated, I think, quite clearly, that I would not use my own tastes and preferences as the basis for arriving at a legal determination about whether a practice that was actually put before me, in concrete terms, was or was not torture.

SCHIFF: Are you taking the position, Mr. Attorney General, that a practice which may be torture under certain circumstances is not torture under others, because either the information is desirable...

CONYERS: The time of the gentleman has expired. You may finish this question and get a response.

SCHIFF: Thank you, Mr. Chairman.

And the question is, are you taking the position that whether something is torture or not depends on who is being subjected to the technique and the desirability of the information?

Does it vary, or is there simply one standard which is governed by the nature of the coercion?

MUKASEY: The question of torture turns on what is in the torture statute, which does not speak, so far as I know, to the nature of the information. It speaks to the intent of the person imposing whatever it is that's claimed to be torture, and depends on other circumstances.

SCHIFF: I would only say, that is not a bright line, that I think any of us can apply.

CONYERS: The gentleman's time has expired.