Leahy, Whitehouse Urge Mukasey
To Clarify Testimony About Destruction Of CIA Tapes
WASHINGTON (Thursday, Feb. 7, 2008) –Senate Judiciary Committee
Chairman Patrick Leahy (D-Vt.) and Sen. Sheldon Whitehouse (D-R.I.),
who also sits on the panel, sent a letter Thursday urging Attorney
General Michael Mukasey to clarify testimony given to the Committee
during last week’s Department of Justice oversight hearing. In the
letter, they ask the Attorney General to explain the scope of the
Department’s investigation into the CIA’s destruction of videotapes
showing the use of harsh interrogation techniques, including
waterboarding, of al Qaeda terrorist suspects.
Attorney General Mukasey has appointed John Durham, a federal
prosecutor from Connecticut, to head an investigation into the
destruction of the tapes. During a Jan. 30 hearing, the Attorney
General testified that the scope of the Department’s investigation
could include any illegal conduct shown on the tapes. However, a
Justice Department spokesman told
The Washington Post
following the hearing that nothing in the Attorney General’s
testimony suggested that nobody 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 [Brian] Roehrkasse statement appears to foreclose any
possibility of investigating whether actions recorded on the tapes
evidence illegal conduct,” Leahy and Whitehouse wrote. “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.”
Leahy and Judiciary Committee Ranking Member Arlen Specter (R-Pa.)
sent a letter Dec. 10 asking the Attorney General to provide an
account of the Justice Department’s role in destruction of the
tapes, as well as any advice the Department had given on the
legality of techniques used in the interrogations.
Mukasey is scheduled to testify before the House Judiciary Committee
today.
The text of the letter follows. Click
here
for a PDF of 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.
Sincerely,
PATRICK LEAHY
SHELDON WHITEHOUSE
Chairman
Senator
