Taking a Hard Look at the ‘Terror Memos’

In a surprising pledge to the Democratic controlled Senate, Attorney General-designate Michael Mukasey today promised to re-examine a series of controversial Justice Department legal opinions on sensitive national security matters and "change them" if he concludes they are unsound.

Mukasey's pledge, made during his confirmation hearing, would seem to cast some doubt on the status of secret Justice Department Office of Legal Counsel (OLC) opinions that have been used to govern key Bush administration policies on interrogation techniques, warrantless surveillance and other contentious matters related to the war on terror. Such opinions are generally relied on as strict legal guidance for officials in other agencies--such as the CIA and the National Security Agency--and are rarely second-guessed once they have been issued.

Mukasey's comments would also seem to raise some questions about the future of the author of those opinions--Steven Bradbury, the de facto chief of OLC and an ally of Vice President Dick Cheney's hardline chief of staff David Addington. Although nominated by President Bush to head the OLC, Bradbury's confirmation has been held up for more than a year and it now seems less likely than ever to be brought to a vote.

"I'm going to review the significant decisions of the Office of Legal Counsel, particularly those relating to national security, although not exclusively, so as to make certain that they are sound, soundly reasoned, soundly based," Mukasey said in response to a question from Democratic Sen. Herbert Kohl of Wisconsin.

Mukasey did note that, in at least one celebrated case, a controversial OLC torture memo--written in August 2002 and authored by Jay Bybee, then chief of the OLC--was withdrawn by the administration. That rare move came only after the memo was leaked, prompting fierce public criticism that it essentially gave the president broad power to authorize CIA interrogators to abuse detainees despite a federal law and international conventions barring torture. "We've already had the experience of one of those opinions having to be withdrawn," Mukasey said, "and I want to make certain that the others that are in place are sound, and change them if they're not.

"I think we need to do that, not only so that everybody can have confidence in the administration of justice, but also so that the people who are out in the field, people who work for agencies, people who may be engaging in interrogation, have confidence that they are acting on the basis of the law and that they're not going to have the rug pulled out from under them at a later time because it's found that somebody had gone too far in giving them authorization."

Mukasey's comments seemed to underscore his reputation for prickly independence--a quality that won him unusually warm praise from Democratic senators and seemed to all but guarantee his speedy confirmation by the Senate to succeed Alberto Gonzales. "I like him," Democratic Sen. Chuck Schumer of New York, a persistent Gonzales critic, told reporters during a break in the hearing. "He's a fair-minded guy, he's an independent guy. He's about the best that we can expect from [this] administration."

For the most part, Mukasey followed the standard script for presidential nominees in confirmation hearings, eschewing any comments that could be deemed controversial. He told Senate Judiciary Chairman Patrick Leahy that he would run a Justice Department in which "partisan politics plays no part"--a platitude that Democrats seemed to take as a refreshing commitment after the furor over allegations that Gonzales had fired U.S. attorneys for political reasons. Mukasey also avoided making a firm commitment on whether he would recommend shutting down the U.S. detention facility at Guantanamo Bay. He also declined to offer any substantive views on the Bush administration's warrantless surveillance activities, asserting that, since he hadn't been "read into" the classified program, he couldn't offer an opinion about it.

In that context, his pledge to re-examine OLC opinions on the books seemed especially noteworthy. Barely a week ago, The New York Times disclosed that following the public withdrawal of the original Bybee torture memo at the end of 2003, Bradbury was brought in to head the OLC under Gonzales and issued two secret opinions on interrogations. Those opinions authorized the CIA to continue using many of the same harsh interrogation techniques, including head-slapping, frigid temperatures and "waterboarding" or simulated drowning, that were approved under the withdrawn memo.

The White House has since vigorously defended the opinions, and last week President Bush once again asserted that his administration does not practice "torture." But Mukasey's comments seemed to indicate that once he takes over, he will decide for himself about the legality of the Justice Department's definition of what constitutes "torture," as well as "cruel, inhuman or degrading" treatment. (After last week's disclosure of Bradbury's secret memos, three Democrats--Senators Richard Durbin, Edward Kennedy and Russell Feingold--wrote President Bush this week urging him to formally withdraw them.)

White House spokesman Tony Fratto today insisted that Mukasey was not "singling out" Bradbury in his comments, noting there were earlier OLC chiefs whose opinions would also be reviewed. He also said that it is not surprising that Mukasey would want to take a fresh look at the OLC opinions. "They don't stand as the law of the land forever," he said. As for Bradbury's status, Fratto said: "Steve Bradbury is a brilliant legal mind and deserves to be confirmed by the Senate. He has great integrity and knows the law."

Perhaps Mukasey's only other noteworthy pledge was to recuse himself from Justice Department matters that might affect the current presidential campaign. Mukasey has long been close to GOP contender Rudy Giuliani (for whom he once worked as a federal prosecutor when Giuliani was U.S. attorney in New York.) Mukasey's son, Marc, is also a partner in Giuliani's law firm and was one of three lawyers who represented Giuliani in issues relating to the former New York mayor's testimony before a state grand jury investigating his former police commissioner, Bernard Kerik.

Noting his "close association" with Giuliani and the fact that Mukasey has served on the GOP candidate's campaign's legal advisory committee, Leahy asked the nominee if he would "totally recuse yourself from any involvement with Mr. Giuliani or any candidate for president."

Mukasey responded: "It is safe to say. It's not only safe to say, I'm saying it too…No ambiguity in the record there."

That may prove to be a lot more than an academic pledge.  A federal investigation of Kerik--who withdrew as President Bush's nominee for Secretary of Homeland Security in 2005--appears to be heating up. A lawyer for Kerik told Newsweek that over the next few weeks he expects to meet with Justice Department officials to discuss concerns that prosecutors in the U.S. attorney's office in New York are preparing to indict his client on criminal tax and corruption charges. One official Kerik's lawyer won't be meeting with--and who won't play any part in the decision--is the man all but certain to become the next attorney general, Michael Mukasey.