Mukasey's Testimony Answers, Raises Questions

During his Senate confirmation hearing Wednesday, Judge Michael Mukasey, President Bush's nominee for attorney general, dodged controversial questions related to the CIA's use of torture and the federal government's domestic surveillance program.

Democrats in the Senate did not prod Mukasey for detailed answers.

Mukasey received strong support from powerful Democrats and made statements that set him apart from his combative and controversial predecessor, former Attorney General Alberto Gonzales.

Throughout the hearing, Mukasey returned to his notion of the attorney general as an agent for the Constitution, not a pawn of the administration. "Legal decisions and the progress of cases are decided by facts and law, not by interests and motives," said Mukasey in his opening statement. Under questioning by Sen. Arlen Spector (D-Pennsylvania), Mukasey later added that, should the president flout his advice and violate the Constitution, he would be prepared to resign his position. "I would have two choices," he said. "I would either try to talk him out of it, or I would leave."

Mukasey's pledge of independence will be tested almost immediately as Congress probes the president's warrantless spying program, the firing of US attorneys, and the rights and treatment of prisoners held at the Guantanamo Bay detention facility.

Spy Powers

Congress is in the process of revising a hastily passed law that greatly expanded the president's power to conduct surveillance. Bush has demanded that Congress give retroactive immunity for telecommunication companies who may have broken the law by giving the Bush administration access to their networks.

During his confirmation hearing, Mukasey seemed to disagree with Bush on this point, saying, "The president can't immunize illegality."

Mukasey ducked the majority of questions regarding the Foreign Intelligence Surveillance Act (FISA), saying he has not yet been informed about the Bush administration's spying program.

However, Mukasey made clear he does not necessarily agree with critics of the Bush administration who claim the president acted improperly in circumventing the law by allowing warrantless surveillance. Mukasey quoted former Carter administration Attorney General Griffin Bell's interpretation of FISA, saying the "Limits of FISA do not reach the limits of presidential authority. There is some gap between where FISA left off and where the Constitution permits the president to act."

Congressional Contempt

As attorney general, Mukasey would have the responsibility of enforcing Congressional statutory contempt citations. Former Attorney General Alberto Gonzales said he would not allow Congressional contempt citations targeting Bush administration officials to reach a Grand Jury.

In July, the House Judiciary Committee took the first step in charging White House chief of staff Joshua Bolton and former White House counsel Harriet Miers with contempt of Congress for failing to provide testimony and documents for the Committee's ongoing investigation into the firing of nine US attorneys. The resolution passed by the Committee awaits a vote by the full House.

Mukasey was asked about his willingness to enforce Congressional contempt charges by Senator Patrick Leahy (D-Vermont), the chairman of the Senate Judiciary Committee. Mukasey could not give a direct answer and instead explained the decision would be made by "the Executive," if Congress acts.

"Unless the US attorney can say that it was unreasonable for the person that is proposed to be held in contempt to have relied on a privilege or an order of the president, that person cited for contempt can't be found to have had the state of mind necessary to warrant charging her or him with criminal contempt. And, therefore, that evaluation is going to have to be made by the Executive when as and if it happens," Mukasey said, adding, "I hope and pray for a lot of things. One of them is that I don't ever have to make that decision."

However, there is a strong possibility that Mukasey will be forced to decide this issue as soon as next month. According to a report in Roll Call Newspaper on Wednesday, an unnamed Democratic aide said that the full House will likely vote on contempt charges in November. If the House Democrats vote together, the contempt citation will pass and will be Mukasey's responsibility.

Guantanamo Detainees and Torture

Justice Department lawyers recently raised the prospect of a new round of hearings for Guantanamo Bay detainees. Mukasey's views - and contentious past rulings - on that subject became another main focus of Wednesday's hearings. In 2002, as a federal judge, Mukasey decided the case of Jose Padilla, the American citizen convicted of working with al-Qaeda to build a "dirty bomb," ruling that Padilla could be detained indefinitely as an "enemy combatant.

When Senator Dianne Feinstein (D-California) asked Mukasey to clarify his position, he returned to his emphasis on law and precedent. "The authority of president to seize US citizens and detain them without charge, leaving aside for a minute where that happens, was in fact sustained at Hamdi," Mukasey said, referring to the Supreme Court decision Hamdi v. Rumsfeld, which recognizes the government's right to detain "enemy combatants" indefinitely. "Hamdi left open the question of where the battlefield is and who defines the battlefield," Mukasey added.

Hamdi, however, also granted detainees the right to legal counsel, and in the Jose Padilla case, Mukasey allowed the prisoner access to a lawyer.

Mukasey told Sen. Lindsey Graham (R-S. Carolina) he would be open to establishing a military tribunal to try detainees, "as long as we don't compromise our ability to gather intelligence." He added that, should a tribunal be established, he would be "uncomfortable" with any coerced testimony being used in trial.

The issues of coercion and torture set the grounds for a rare moment in the hearing, when Mukasey drew upon ethical considerations before legal ones. "We don't torture not simply because it is against the law," he said. "It is antithetical to everything this country stands for."

Here Mukasey set a clear distinction between himself and former Attorney General Alberto Gonzales, who, during his own confirmation hearing, did not deny the president's authority to allow torture.

Maya Schenwar is a reporter for Truthout.org.

Matt Renner is an assistant editor and Washington reporter for Truthout.

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