today, senators patrick leahy and
sheldon whitehouse asked essentially
the above question -- by letter -- while
chairman conyers and rep. wexler asked
him live, in the HJC hearing, today, a
separate, but similar, line of inquiry. . .
UPDATE -- rep. wexler gets some astonishing answers:
mukasey answered wexler by saying that
he (mukasey) "couldn't say" (on client con-
fidences grounds) whether the president,
or the vice president, ordered him to not
enforce/prosecute the subpoenas issued against
marriet miers and joshua bolten. stunning.
in what way, in this matter, can the
president or vice president be seen as
his "client"? it is a criminal contempt
proceeding -- and while the POTUS is the
chief representative of the executive branch,
he does not control -- nor should he -- what
happens once a crime has occured -- a crime
like the willful defiance of a lawful subpoena.
in any event, here is the letter:
February 7, 2008
The Honorable Michael B. Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Mukasey:
We seek clarification from you after a statement made by the Department’s spokesman following last week’s oversight hearing that appears to contradict your testimony.
You were asked at the hearing about the scope of the Department’s investigation into the CIA’s destruction of videotapes showing its officers using harsh interrogation techniques, reportedly including waterboarding. Director Hayden of the CIA confirmed publicly this week that the CIA has used waterboarding.
In response to our questions about whether the investigation being conducted by acting U.S. Attorney John Durham would include not just the tapes’ destruction, but also any illegal conduct shown on those tapes, you appeared to testify that it could. Your testimony was contradicted immediately after the hearing when, as reported in The Washington Post, Brian Roehrkasse, the Department’s spokesman, said that nothing in your testimony “suggests that any of those who relied in good faith upon the Department's advice would be subject to criminal investigation.”
In contrast to your testimony that the investigation would go where it leads and could include the conduct on the tapes if warranted, the Roehrkasse statement appears to foreclose any possibility of investigating whether actions recorded on the tapes evidence illegal conduct. If the Department of Justice has determined as a matter of policy that irrespective of evidence it will never investigate possible conduct in violation of legal prohibitions against torture, you should clarify your testimony to the Committee by disclosing that determination.
The Department’s statement also heightens our concern about possible conflicts within the Department that could unduly constrain Mr. Durham’s investigation. Indeed, concern about the Department’s role in offering advice on the legality or advisability of the destruction of the tapes as well as advice on the legality of techniques used in the interrogations led to the December 10, 2007 letter sent to you before the hearing that asked how the Department would resolve conflicts arising from such advice. These conflicts raise a question as to why you have not given Mr. Durham the “plenary” authority conferred on Patrick Fitzgerald by former Deputy Attorney General James Comey in the Plame investigation.
In light of the contradictions and ambiguities exacerbated by the Department’s statement following the hearing, we believe that it is important for you to clarify the scope of the Department’s investigation, and make explicit any policy limitations you or others have imposed on the Department’s exercise of its law enforcement duties. Specifically, is Mr. Durham authorized to include in his inquiry an investigation into whether the conduct that was shown on the destroyed tapes was illegal? What steps have you taken to make sure the investigation remains independent and fair? If Mr. Durham is foreclosed from investigating the conduct engaged in during the interrogations, how and by whom is he so foreclosed, how and by whom will determinations be made whether that conduct was in violation of law, taking into consideration the Department’s “advice”? How will the legitimacy and accuracy of the Department’s “advice” be determined?
While we are sensitive to the need to avoid interfering with an ongoing criminal investigation, your testimony and the Department’s subsequent statements have raised concerns that we hope you agree merit prompt response.