Mukasey Backs Executive Power

Dan Eggen and Paul Kane
Washington Post
October 19, 2007

President Bush’s choice for attorney general, Michael B. Mukasey, embraced some of the administration’s most controversial legal positions yesterday, suggesting that Bush can ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws.

Mukasey struck a different tone on the second and final day of his confirmation hearing, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president cannot override constitutional and legal bans on torture and the inhumane treatment of prisoners.

His shift prompted an unexpected clash with key Democrats on the Senate Judiciary Committee, although none said Mukasey’s confirmation was in question.

The panel’s chairman, Sen. Patrick J. Leahy (D-Vt.), who had heaped praise on the former judge’s qualifications and testimony on Wednesday, told him that, “on a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law. That seems nowhere near as bright a line today.”

Mukasey aroused Democrats’ concerns by testifying that there may be occasions when the president’s powers as commander in chief could trump a federal law requiring that a special court approve intelligence-related wiretaps. That answer jibes with one of the legal rationales used by the Bush administration in defense of its controversial Terrorist Surveillance Program, under which the National Security Agency eavesdropped on calls between persons in the United States and those overseas without first securing a court warrant.

Mukasey also repeatedly demurred when asked whether an interrogation technique that involves simulated drowning, known as waterboarding, constitutes torture and is therefore illegal. “I don’t know what’s involved in the technique,” Mukasey said. “If waterboarding is torture, torture is not constitutional.”

“That’s a massive hedge,” responded Sen. Sheldon Whitehouse (D-R.I.). “I mean, it either is or it isn’t.” Mukasey never directly answered the question.

White House spokesman Tony Fratto defended Mukasey, saying he “is not in a position to discuss interrogation techniques, which are necessarily classified,” because he was not briefed on such programs.

Waterboarding generally involves strapping the prisoner to a hard surface, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning, according to human rights groups. The practice has been prosecuted as torture in U.S. military courts since the Spanish-American War.

U.S. intelligence sources have said the tactic was used by the CIA during interrogations of the alleged mastermind of the Sept. 11, 2001, terrorist attacks, Khalid Sheik Mohammed, and several others.

“The United States’ chief law enforcement officer should be able to say — without hesitation — that strapping someone to a board, stuffing a rag in his mouth, and pouring water over his head so he fears drowning is torture,” Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, said in a statement after Mukasey’s testimony.

While Whitehouse and several other Democrats said Mukasey’s new answers were disappointing, they did not indicate that they will oppose his confirmation. A committee vote on Mukasey’s nomination could occur as early as next Thursday, with a full Senate confirmation vote likely by the end of the month.

“He’s at least answered the questions, which is better than his predecessor,” Leahy said, referring to the habit of Alberto R. Gonzales, who resigned last month as attorney general, of being unable to recall details or make clear declarations. “He’s going to be different than Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale.”

Amid charges by lawmakers from both parties that Gonzales had inappropriately politicized the Justice Department, Mukasey drew bipartisan praise Wednesday for promising to resign rather than implement any policies that he believes violate the Constitution. But Mukasey also suggested that he would side with the Bush administration’s views on presidential authority, a stance he made clearer yesterday.

Asked about executive privilege, a legal doctrine presidents have cited to avoid disclosing records related to their deliberations, Mukasey endorsed the administration’s argument that it covers more than communications directly involving the president. He also said that it would be inappropriate, in a battle between Congress and the White House over access to such documents, for a U.S. attorney to pursue contempt charges against a White House official who is following the legal advice of the Justice Department in refusing access.

Several contempt citations were approved this summer by the House Judiciary Committee against current and former White House officials over their refusal to testify in the ongoing congressional investigations of the firings of nine U.S. prosecutors. Leahy suggested yesterday a “real probability” that more citations are on the way.

“It simply can’t be appropriate for the same department that offered the opinion [allowing wide use of executive privilege] then to turn around and prosecute somebody who followed it,” Mukasey said.

Some of the most tense exchanges at the hearing centered on whether the president must strictly abide by provisions of the Foreign Intelligence Surveillance Act, a 1978 law that governs clandestine spying in the United States. Mukasey suggested that the president can ignore a law, including the surveillance act, if it unduly impinges on his constitutional authority as commander in chief during wartime.

“The president is not putting somebody above the law; the president is putting somebody within the law,” Mukasey said. “The president doesn’t stand above the law. But the law emphatically includes the Constitution.”

Leahy said he was “troubled” by the answer: “I see a loophole big enough to drive a truck through.”

Sen. Russell Feingold (D-Wis.), who had questioned Mukasey on the same topic on Wednesday, complained that the nominee had gone from being “agnostic” to holding a “disturbing view.”

“You’ve suggested that I’ve gone overnight from being an agnostic to being a heretic. . . . I haven’t,” Mukasey responded, though he did not elaborate.

Mukasey also amplified his opposition to a proposed federal shield law for journalists that the Judiciary Committee has already approved. The bill attracted bipartisan support after several high-profile cases in which reporters were jailed or threatened with contempt charges for refusing to divulge the identities of sources.

Mukasey said that the current system has worked “passably well” and that any problems could be solved by changes to internal Justice Department rules. He noted that he worked briefly as a wire service reporter and later represented media organizations as a lawyer in private practice, but he echoed Bush administration arguments that such a law could be used to protect journalists who are acting as spies or terrorists.

At one point, a flustered Leahy asked Mukasey “whether you received some criticism from anybody in the administration last night after your testimony,” leading to a different set of answers at yesterday’s hearing.

“I received no criticism,” said Mukasey, who was measured and soft-spoken throughout his testimony. “I had dinner with my family last night.”

Staff researcher Madonna Lebling contributed to this report.