Arlen Specter: Specter’s Comments on Judge Mukasey and FISA at Judiciary Hearing

Washington, D.C. -- October 31, 2007 -- Today, U.S. Senator Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee, spoke about FISA and the nomination of Judge Michael Mukasey to be the Attorney General of the United States during a Judiciary Committee hearing entitled, "FISA Amendments: How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability"

A copy of Senator Specter’s opening statement is pasted below:

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Senator Specter:
Thank you, Mr. Chairman.

I am glad to see that we have come a long way in the last 18 months since legislation was introduced in mid-2006 to bring the terrorist surveillance program under the FISA Court.

And we have some very important considerations to protect U.S. persons, to have the FISA Court review the procedures, and to handle minimization in an appropriate way.

With respect to the request for retroactive release of liability, I have great reluctance. Part of that stems from the secrecy that the government has interposed. When we were seeking subpoenas last year for the telephone companies, we were thwarted by action of the vice president in contacting Republican members without notifying the chairman.

And as I see the situation, I think the telephone companies do have a strong, equitable case, but my inclination is that they ought to get indemnification; that the courts ought not to be closed.

I doubt very much the cases will be proved, but if plaintiffs can prove them, I think they ought to have their day in court. And it is costly, but that's part of the cost of the war on terrorism.

Finally, yesterday, we had a closed-door briefing on what is happening. And I believe we need more briefings.

The government has been reluctant to follow the statute on informing the Intelligence Committee about FISA until they needed support for the confirmation of General Hayden as director of the CIA.

And the session we had yesterday was an important one. And I think we need more information from the administration.

The chairman has referred to the pendency of the nomination of Judge Mukasey to be attorney general.

And that is a matter which covers the issues which are before us now or are a first cousin at a very minimum.

And it is my hope, Mr. Chairman, that we would be able to resolve the issues on Judge Mukasey sooner rather than later. And I know that's your inclination as well, and that you had wanted to bring the matter to a determination by the committee early.

I think it may be advisable to have a closed-door session, where we talk about waterboarding and we talk about torture and we talk about those techniques.

Earlier this week, in the wake of the issue on waterboarding, I had an extensive briefing by General Hayden. There are people who overlap the Intelligence Committee with the Judiciary Committee who know about the details, and I believe it is a matter that the full committee ought to be informed about.

I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go. He has repudiated waterboarding, he has rejected it, but he has stopped short of making a determination of legality.
And let's face the facts. The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened.

Now, they may be at risk regardless of what Judge Mukasey says or what the next attorney general says. And last week former Secretary of Defense Rumsfeld was in France, and there was an effort made to initiate a prosecution against him.

And extraterritorial jurisdiction is being asserted by many countries under the doctrine of crimes against humanity.

Ordinarily, a prosecution can be brought only where the act occurred, but what Judge Mukasey would say on that subject has repercussions in that direction.

The standard has been articulated of whether it shocks the conscience under the Rochin decision. And that depends upon a totality of circumstances. It depends on who is the individual, what access the individual has to information, how important the threat is, what is the likelihood of getting information which would be critical in saving lives.

We all dodge around the so-called ticking bomb case. Nobody wants to articulate a principle of there are any exceptions to torture.

And it is probably advisable not to be explicit in that situation, because you may make exceptions which will be broadened, as the expression goes, that you can drive a truck through.

But we do know that the Department of Justice is in dire straits. If there's one thing that this committee and perhaps the entire Senate is unanimous on, it's that the Department of Justice is dysfunctional.

I think we need extensive assurances. But as I carefully read Judge Mukasey's letter, I don't know how much more he could say than what he has said, considering the exposure to people in collateral circumstances and considering the impossibility of predicting what may be faced with respect to a future potential danger, if the so-called ticking bomb hypothetical were to reach fruition.

But what I would like to see is us, Mr. Chairman, go into a closed session like we had yesterday. I thought it was very fruitful when we were behind closed doors and could talk more openly about the subject matter of what the telephone companies have been doing, and to share information from those who know more about the interrogation techniques and the waterboarding than many members of this committee know.

And the Intelligence Committee is privy to that, and they should be. But so should this committee, when we have to make a measurement and make a decision about the adequacy of what Judge Mukasey has said on a subject which could defeat his confirmation.

No doubt the confirmation is at risk at this moment because he has not answered the question categorically. And I think we need to have a very frank discussion with more facts available. And I believe that can only be done in a closed-door session.

I would hope we might do that early next week. Hopeful we could get Judge Mukasey on the agenda for next week and either fish or cut bait on this important matter.

Source: Senator Arlen Specter