Open Ambiguity

Because I say so, that's why... (Quoted from Talking Points Memo)

Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.

Update: A transcript of the exchange is below.

CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

MUKASEY: That's a direct question, and I will give a direct answer.

No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.

For me to use the occasion of the disclosure that that technique was once part of the CIA program -- an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they
will now be subject to criminal investigation for having done so.

That would put in question not only that opinion, but also any other opinion from the Justice Department.
Essentially, it would tell people: "You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change." And that's not something that I think would be appropriate and it's not something I will do.

CONYERS: Are you prepared to let us get a copy of the Office of Legal Counsel opinion?

MUKASEY: The Office of Legal Counsel opinion discusses particular techniques that were part of what remains a classified program.

We have, I believe, provided an unclassified discussion of general legal principles -- did it back in 2004. And we have provided some classified briefings with regard to the legal reasoning underlying opinions, and are prepared to continue to do so.

But the opinions themselves can't simply be turned over because they discuss not simply legal reasoning, but the program itself, which remains classified.

CONYERS: Well, every member of this committee is cleared for top secret information.

MUKASEY: The opinions themselves dealt with a program that -- to the extent the opinions themselves deal with a current -- opinions relating to a past program cannot simply be disclosed in that fashion. They can be the subject of briefings, and have been. We can't simply turn them over.

CONYERS: Well, can we meet and find out what it is you're basing the response to my question?

MUKASEY: I think the question was whether I was going to open a criminal investigation because it's now been disclosed that waterboarding was part of the program.

And what I've said is that waterboarding, because it was authorized to be part of the program, pursuant to approach -- that it was authorized to be part of the CIA program, cannot possibly be the subject of a criminal -- a Justice Department investigation, because that would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice.

MUKASEY: That won't change whether letters are disclosed or not disclosed.

CONYERS: Well, what we're trying to do is make ourselves conversant with the basis of the response that you gave to my question. So there must be some way, between the Department of Justice and the House Judiciary Committee, that we can be made more aware -- we've requested this document before -- of the document on which you base your response.

MUKASEY: The response about a criminal investigation doesn't really depend on the particular content of the document. It depends on their having been an opinion that defined and authorized the limits of a particular program that is now disclosed included waterboarding at that time. It's no longer part of the program; that's also been disclosed, but that doesn't change the contents of the letter.

That said, I'm sure that we can talk about possible additional discussion of what is in the letters between the department and members of this committee. My understanding is there had been ongoing discussion with members of various committees, including particularly the Intelligence Committees, but I was not aware -- there may well very well have been discussions with members of the committee. I'm not certain as I sit here.

CONYERS: Well, we'll pretend that we've never asked for this before and we'll start right now. Thank you very much.