Leahy asked Mukasey whether he believes that the president has the authority to "override and immunize acts of torture," to which he replied, "We are party to a treaty that outlaws torture. Torture is unlawful under the laws of this country. The president has said that in an executive order."
"But beyond all of those legal restrictions," Mukasey continued, "we don't torture, not simply because it's against this or that law, or against this or that treaty. It is not what this country is about. It is not what this country stands for. It's antithetical to everything this country stands for."
He went on to cite the example of the U.S. participation in liberating Nazi concentration camps by noting, "we didn't do that so that we could then duplicate it ourselves."
Using strong language, Mukasey went on to disavow the memo, calling it "worse than a sin, it was a mistake. It was unnecessary."
Mukasey pledged that he would review existing legal opinions from the Justice Department's Office of Legal Counsel, which has set interrogation policy and authorized the National Security Agency's warrantless wiretapping program.
Offering his insight into the Foreign Intelligence Surveillance Act, the law first passed in 1978 that authorizes a secret court to issue surveillance warrants, and executive authority to establish the NSA program, Mukasey said the president is not able to "immunize illegality" and that, looking at FISA's "complex history," it's evident that "there was some gap between where FISA left off and where the Constitution permitted the president to act."
Responding to a question on the matter asked by Sen. Russell Feingold, D-Wisc., Mukasey said, "I think it's important to recognize that the fourth amendment bars unreasonable searches. It then goes on to speak of when a warrant is required and when it's not."
"But there's very scant, if any, case law on the question of whether intelligence-gathering, as distinct from gathering of evidence for criminal cases, is something that may very well be much more flexible than matters relating to the gathering of evidence."
Lawmakers are currently wrangling with the task of updating FISA.
Mukasey also addressed the conflicts between protecting freedoms of U.S. citizens and enforcing national security, saying that "protecting civil liberties and people's confidence that those liberties are protected is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us."
Feingold's fellow Wisconsin Democrat Sen. Herb Kohl raised the subject of the confinement of detainees at the U.S. Navy's Guantanamo Bay facility, which Mukasey described as "a kind of no man's land of jurisdiction."
Mukasey admitted that "detaining people apparently without end" at Guantanamo Bay is giving the U.S. a "black eye" and that there should be an ultimate goal of closing it down "because it's hurting us." He said he thought President Bush shared that goal saying, "I think I'd be preaching to the converted."
Mukasey said he would give the president the best advice he could on the issue and said, "I think there are substantial problems with Guantanamo, both problems of reality and problems of perception."