Department of Justice Seal

Remarks Prepared for Delivery by Attorney General Michael B. Mukasey at the Justice Department Oversight Hearing of the Senate Judiciary Committee

Washington, D.C.
Wednesday, January 30, 2008 - 10:00 am

Good Morning, Chairman Leahy, Senator Specter, and Members of the Committee. Thank you for the opportunity to testify today.

My tenure at the Department of Justice began less than three months ago. Even in that short time, I have confirmed what I had hoped and expected to find: men and women who are talented, committed, and dedicated to fulfilling the Department’s mission.

As you know, Mr. Chairman, I am new to Washington, and my education in the ways of this city continues. I have tried to live up to the commitments I have made to work with Congress, and to keep Congress informed about the Department’s activities and policy positions where possible.

There will be moments of disagreement, as there have been. There are policy initiatives that the Department supports that some Members of this Committee vigorously oppose, and some policy initiatives that Members of this Committee support that the Department opposes. There also are situations where the interests of the Executive Branch and the Legislature are in tension. This is not, as some people have argued, evidence of a broken or flawed political system; it is part of the genius of the design of our Constitution, which embodies a robust separation of powers. Although these tensions will never disappear, there are many areas of agreement where we can work together on behalf of our common clients, the American people. There is one area where I particularly need your help. As you know, many key positions in the Justice Department, including those of Deputy and Associate Attorney General—the number two and three positions, respectively—are vacant. These positions, and others, are being filled by people of great talent and dedication serving in acting capacities; but the continued wait for Senate-confirmed officials creates a tentative atmosphere that is not in the interest of the Department or the country. Mr. Chairman, I appreciate the steps the Committee has taken to hold hearings for these nominees. I hope you will work to ensure that they and others are confirmed quickly, so that a permanent leadership team is in place at the Justice Department.

As this Committee is well aware, the clock is ticking on critical national security authorities—the Protect America Act, which gave the government new authorities to conduct surveillance of foreign intelligence targets overseas, will soon sunset. I urge you to pass legislation ensuring that our intelligence community retains the tools it needs to protect the country. It must be legislation that enables our intelligence professionals to surveil targets overseas without individual court orders, and it must provide retroactive liability protection for companies who are believed to have helped our country in the wake of the September 11, 2001, terrorist attacks. The Senate Intelligence Committee’s bipartisan bill is not perfect, but it is a fundamentally sound proposal that would put critical surveillance authorities on a long-term institutional footing, and would help ensure that we continue to obtain assistance from third parties that is vital to our national security efforts. I hope Congress will act quickly to pass the legislation our nation needs to modernize our national security surveillance laws.

I am reminded each day in my morning threat briefings that the protection of the American people from the threat of international terrorism is, and must remain, the Justice Department’s top priority. The Department continues to make progress in other key areas as well, from protecting the civil rights of all people, to preventing violent crime and public corruption, to stemming illegal immigration. I would be happy to discuss each of these subjects in detail with you today.

Let me now turn to an issue that I know is of great importance to several Members of this Committee. Mr. Chairman, as you noted in a letter you sent to me late last week, I committed at my confirmation hearing to review the current program used by the CIA to interrogate high-value al-Qaeda terrorists, and the legal analysis concerning that program. I have kept my commitment to the Committee: I have carefully reviewed the limited set of methods currently authorized for use in the CIA program, and have concluded that they are lawful.

I am aware that you and other Members of the Committee have asked specifically that I address the legality of waterboarding. I sought and received authorization to disclose publicly, however, that waterboarding is not among the techniques currently authorized for use in the CIA program. In that respect, passing on its legality is beyond the scope of the commitment I made to this Committee. Waterboarding is not, and may not be, currently used.

Whether or not waterboarding is something that will be authorized in the future is not for me to decide – certainly not for me alone. But I can tell you what it would take for waterboarding to be added to the CIA program. First, the CIA director would have to request its authorization. Second, he would have to ask me, or any successor of mine, if its use would be lawful—taking into account the particular facts and circumstances at issue, including how and why it is to be used, the limits of its use, and the safeguards that are in place for its use. And third, the issue would have to go to the President. Those steps may never be taken, but if they are I commit to you today that this Committee will be notified of the fact in the same manner as the Intelligence Committees.

Given that waterboarding is not part of the current program, and may never be added to the program, I do not think it would be appropriate for me to pass definitive judgment on the technique’s legality. I understand fully that you and other Members of the Committee may disagree with that decision. I also appreciate both the public interest in this issue, and the sincerity and strength of the views you and your colleagues have expressed. But, as I explained during the confirmation process, I do not believe it is advisable to address difficult legal questions in the absence of actual facts and circumstances. That this issue has generated such intense public interest and debate is no reason to ignore that principle; in fact, it is all the more reason to follow it.

The principle that one should refrain from addressing difficult legal questions in the absence of concrete facts and circumstances has even more force in this context. That is because any answer I give could have the effect of articulating publicly—and to our adversaries—the limits and contours of generally worded laws that define the limits of a highly classified interrogation program. Indeed, I understand that a number of Senators articulated this very concern in the fall of 2006, when they defeated an amendment that would have expressly prohibited waterboarding.

If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit waterboarding’s use. But other circumstances would present a far closer question.

Reasonable people can disagree, and have disagreed, about these matters. That is not surprising: They involve application of generally worded legal provisions to complex factual situations in an area of the highest national interest. It is precisely because the issue is so important, and the questions so difficult, that I, as the 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.

I understand that I will be asked questions about this topic today. I will answer those questions to the best of my ability, but within the limits that I have described. I recognize that those limits may make my task today more difficult for me personally. But it is my job as Attorney General to do what I believe the law requires and what is best for the country, not what makes my life more pleasant.

Despite our disagreement on this issue, I hope that the Committee will respect my judgment on this matter, and I hope and expect that we will find common ground on many other matters of great importance to this Committee and to the country—including, most importantly, our shared belief in the important mission of the Department of Justice and the great work of its employees.

Mr. Chairman and members of the Committee, I look forward to your questions. 

Letter to Senator Leahy