Democrats Dismayed by Mukasey’s Views on Executive Power By Keith Perine and Michael Sandler, CQ Staff
Attorney general nominee Michael Mukasey signaled Thursday he shares the administration’s expansive view of President Bush’s authority to withhold information from Congress, skirt federal statutes and authorize harsh interrogation techniques.
The retired federal judge’s statements, during the second day of his confirmation hearing before the Senate Judiciary Committee, put him at odds with the Democrats who will decide whether Mukasey succeeds Alberto R. Gonzales as the head of the Justice Department.
“I think what is being fleshed out is that he has a much more heightened view of executive power,” said California Democrat Dianne Feinstein.
Mukasey faced sharp questions from panel Democrats. Feinstein pressed him about whether the president could violate the 1978 Foreign Intelligence Surveillance Act (FISA, PL 95-511), which many lawmakers say he did when he ordered the National Security Agency to conduct warrantless surveillance of U.S. citizens. Mukasey echoed the administration’s legal argument that federal laws cannot trump the president’s constitutional authority to protect the country from an attack.
“All I can say is, I share your hope. And I share the view that if the president can act within FISA, then that is where he has to act. I think, based on the history that you read, the only — and I don’t want to look for areas of disagreement. I was told not to look for areas of disagreement,” Mukasey said.
He added, “the only place where we might conceivably have a disagreement, and I’m not certain we do there, either, is in the view that notwithstanding what Congress is saying specifically, we are restricting the president’s — what might otherwise be the president’s authority under the Constitution, that that can actually restrict the president’s authority under the Constitution. Whether a past Congress said we acknowledge that the president might have authority that lies beyond this statute, to repeal that can’t change the constitutional reality.”
Russ Feingold, D-Wis., told Mukasey that “it sounds like, overnight, you’ve gone from being agnostic, as you and I have gone back and forth since our first meeting on this question, to holding what is a rather disturbing view.”
Outside the hearing room, Feingold said, “What we heard today was I think an extreme and almost inexplicable view of the Supreme Court decisions in this area, in a way that threatens the powers of Congress and our right to create statutes that the president will respect. So it is troubling, and I think it will have to be considered in the context of the whole nomination. And it was disappointing to see his shift overnight.”
Richard J. Durbin, D-Ill., asked Mukasey whether some interrogation techniques the administration has reportedly used on terrorism suspects — which critics say amount to torture — violate the Geneva Conventions. Mukasey hedged, saying he did not know the Geneva articles or the techniques well enough.
That prompted Rhode Island Democrat Sheldon Whitehouse to describe the technique of simulated drowning known as waterboarding and then ask Mukasey whether it is unconstitutional.
“If it amounts to torture, it is not constitutional,” Mukasey said.
“I’m very disappointed in that answer,” Whitehouse shot back. “I think it is purely semantic.”
Mukasey also reiterated a view he first expressed Wednesday, that a U.S. attorney is not required to bring an indictment before a grand jury if the House or the Senate passes a contempt of Congress citation against current or former White House officials for refusing to testify or provide documents to Congress.
Mukasey’s answers left Democrats wondering whether the nominee had received instructions from the White House after Wednesday’s session.
“I don’t know whether you received some criticism from anybody in the administration last night after your testimony, but I sense a difference and a number of people here, Republican and Democratic alike, have sensed a difference,” Leahy said.
Mukasey responded: “I received no criticism. I had dinner with my family last night.”