The Washington Post reports:
Attorney general nominee Michael B. Mukasey suggested today that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief.
Under sharp questioning about the Bush administration's warrantless eavesdropping program, Mukasey said there may be occasions when the president's wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps.
In such a case, Mukasey said, "the president is not putting somebody above the law; the president is putting somebody within the law. . . . The president doesn't stand above the law. But the law emphatically includes the Constitution."
Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was "troubled by your answer. I see a loophole big enough to drive a truck through."
During a second day of hearings on his nomination, Mukasey defended several of the Bush administration's most controversial legal policies, prompting a drop in temperature in his previously warm relations with Democrats on the committee.Code for, "We're going to use the unlimited police state capabilities that Congress gave the executive branch for combating terrorism against any and all that we deem to be our enemies. That includes Democrats, blacks, hispanics, liberals."
Mukasey, for example, endorsed the administration's views of expansive presidential authority in the use of executive privilege, saying it would be inappropriate for a U.S. attorney to press for contempt charges against a White House official protected by a claim of executive privilege.
Mukasey also demurred when he was repeatedly asked whether a simulated drowning technique known as waterboarding constitutes unlawful torture. Mukasey had strongly condemned the use of harsh interrogation tactics yesterday and said that the president could not order treatment that violated constitutional prohibitions.
But Mukasey said he could not elaborate on what techniques might be allowed, and specifically refused to answer questions from Democrats about whether waterboarding specifically was unconstitutional, saying he did know enough about what the technique entailed.
"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.
Mukasey's remarks stood in sharp contrast to his comments during his first day of testimony yesterday, when he stopped short of embracing the Bush administration's legal views on several important topics and criticized its policies or legal reasoning in several areas.
The apparent shift prompted criticism from several committee Democrats, who largely showered Mukasey with praise yesterday and have predicted that he will be easily confirmed to replace former attorney general Alberto R. Gonzales.
During a break in testimony, Leahy told reporters that he was concerned about a "sudden change" in Mukasey's answers regarding the limits of presidential power.
"There were far clearer answers yesterday than there were today," Leahy said.
Yesterday, Sen. Russell Feingold (D-Wis.) pressed Mukasey on the limits of federal surveillance law with little success. Today, after Mukasey more clearly embraced the argument that such a law might infringe on presidential authority, Feingold complained that Mukasey had gone from being "agnostic" to holding a "disturbing view."
"You suggest 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, which has been approved by the Judiciary Committee in the wake of several high-profile cases in which reporters were jailed or threatened with contempt charges for refusing to divulge sources. Mukasey said that the current system has worked "passably well" and that any problems could likely be solved by changes to internal Justice Department rules.
Mukasey, who worked briefly as a wire service reporter and later represented media organizations as an attorney in private practice, echoed Bush administration arguments that such a law could be used to protect journalists who also are acting as spies or terrorists.
Yesterday, Mukasey said that he would chart an independent path for the Justice Department after Gonzales's tumultuous tenure, testifying that he would not be afraid to disagree with the president and would resign rather than implement policies that he believed violated the Constitution.
Mukasey also said the president cannot use his powers as commander in chief to override prohibitions against using torture or cruel, inhuman and degrading conduct in the interrogation of prisoners.
"Are you prepared to resign if the president were to violate your advice and in your view violate the Constitution?" asked Sen. Arlen Specter (R-Pa.). Mukasey responded: "That would present me with a difficult but not a complex problem. I could either try to talk him out of it or leave."
These and other strongly worded remarks reflected the former federal judge and prosecutor's desire to position himself as an independent legal thinker who, unlike Gonzales, has no long-standing ties to the current White House. "I'm not a bashful person, and I'm not going to become a bashful person if I'm confirmed," Mukasey said late in the day.
But Mukasey also declined to directly answer some questions related to controversial surveillance, detention and interrogation issues, and he suggested that in some policy areas his views might differ little from those of his predecessor.
During a sparring session with Feingold, for example, Mukasey declined to say whether the president could order a violation of federal surveillance law.
Mukasey said he could not provide an informed analysis without being briefed on the classified program but noted that some lawyers think the law does not entirely limit the president.
"I find your equivocation here somewhat troubling," Feingold responded.
Mukasey also expressed conservative views on social issues as divergent as obscenity and immigration, saying he would consider more robust prosecution of those caught being in the country illegally.
Most of the committee's Democrats, including Leahy, yesterday nonetheless repeated earlier predictions that Mukasey will be confirmed easily and with strong bipartisan support. "I'm encouraged by the answers," Leahy told reporters.
Yesterday's session was interrupted for several hours by a congressional ceremony for the Dalai Lama.
Sen. Charles E. Schumer (D-N.Y.), who had recommended that the White House nominate Mukasey, said Mukasey needs to rescue the Justice Department from its "greatest crisis since Watergate."
Much of the praise for Mukasey was accompanied by barely disguised swipes at Gonzales. "I think it's time for a steady hand, for a professional," said Sen. Jeff Sessions (R-Ala.). Schumer was more critical, saying Gonzales "was not much more than a potted plant" as attorney general.
Gonzales, a longtime friend and confidant of President Bush, resigned in August amid allegations that he bowed to White House demands in the firing of nine U.S. attorneys and on controversial national security policies, and then misrepresented his role during testimony on Capitol Hill.
Gonzales, who has hired a private defense attorney, is under investigation by the Justice Department over whether he lied to Congress or improperly tried to influence a congressional witness.
Democrats had earlier threatened to hold up the Mukasey hearings until they received more documents from the White House related to congressional investigations of the prosecutor firings and other issues. Those demands were put on hold, but Democrats say they will not abandon their probes.
Mukasey avoided a question about whether he would allow a U.S. attorney to pursue contempt charges against the White House if it refused to hand over the documents at issue, as Justice Department procedures provide.
Mukasey, 66, was calm and soft-spoken during much of his testimony, witnessed in the hearing room by family members and friends, including former FBI director Louis J. Freeh. Leahy and other lawmakers described Mukasey as candid and direct compared with Gonzales, who was widely accused of giving vague and evasive testimony.
When questioned about a Justice Department legal opinion issued early in the Bush administration, and since rescinded, that narrowly defined the acts that constitute torture, Mukasey replied differently than Gonzales had at his own confirmation hearing in early 2005.
Although Gonzales had repudiated that document, he repeatedly declined to directly answer questions about the limits of executive branch legal authority to undertake harsh interrogation methods that could be used on terrorism suspects. Mukasey said flatly that the president's commander-in-chief powers do not give him the authority to order torture or cruel treatment, which are prohibited by U.S. laws and international treaties.
At the same time, Mukasey essentially agreed with Gonzales's contention that a president can find a law unconstitutional.
While Gonzales had strongly defended the detention of terrorism suspects at Guantanamo Bay, Cuba, Mukasey called it a "black eye" for the United States because "we are detaining people apparently without end." He also suggested that it would be difficult to close Guantanamo Bay soon and defended an earlier comment that prisoners there were treated better than many U.S. citizens.
Under questioning from Leahy, Mukasey promised to recuse himself from any investigations that might touch on the GOP presidential campaign of former New York mayor Rudolph W. Giuliani, a longtime friend and political ally. Mukasey also vowed to limit contact between Justice Department officials and "political figures," and to discourage bringing charges close to an election.
In response to questions about rising crime rates, Mukasey said he would consider reallocating resources for anti-gang programs and other efforts. The Justice Department has diverted funds and personnel from crime-fighting to focus on counterterrorism and immigration cases, shortchanging anti-gang and anti-crime efforts.
"We can't turn our society into something not worth preserving in order to preserve it," he said.