The Gap in Mukasey's Testimony

Jacob Sullum | October 18, 2007

Yesterday's confirmation hearing for Michael Mukasey, President Bush's nominee for attorney general, provided a bit more evidence that Mukasey has more respect for the rule of law and a less expansive view of executive authority than Alberto Gonzales. I know, I know: That's not saying much.

In an exchange with Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Mukasey not only said torture is wrong, contrary to American values, and illegal; he also indicated that the president is not free to disregard laws against torture in the name of national security. When Leahy asked whether there is "such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violate the law," Mukasey said, "Not that I'm aware of." Later, in an exchange with Sen. Arlen Specter (R-Pa.), he agreed that the president is bound to "follow the statute" banning "cruel, inhuman or degrading treatment" of detainees.  

On the question of warrantless surveillance, Mukasey left more wiggle room:

LEAHY: Do you believe that the president has authority to override something that is in law, legal requirements, and immunize illegal surveillance on Americans?

MUKASEY: The president can't immunize illegality. That's a contradiction in terms.

But that said, I think there's a long, complex history to the FISA [Foreign Intelligence Surveillance Act] statute, beginning with its passage in 1978 when the then-attorney general, Jimmy Carter's attorney general, Griffin Bell, took the view and expressed the view that the limits of FISA did not reach to the limits of presidential authority, which is to say that there was some gap between where FISA left off and where the Constitution permitted the president to act.

Mukasey seems to be suggesting (implausibly, I think) that the NSA's warrantless surveillance of international communications involving people on U.S. soil did not violate FISA. But he also seems to be saying the president does not have the authority simply to override the statute because he thinks doing so is necessary to prevent terrorist attacks. Or am I being too hopeful? Maybe. In an exchange with Sen. Orrin Hatch (R-Utah), Mukasey suggested that the "gap between where FISA left off and where the Constitution permitted the president to act" cannot be discerned by reading the statute:

When the Foreign Intelligence Surveillance Act was enacted it, according to the then-attorney general, did not reach the limit of the president's authority, which means that the president had authority between where the statute left off and where his authority left off. 

A statute can't limit that authority because he has the responsibility to protect the country and so he has the authority that's commensurate with that. 

Mukasey went on to say that it's better for the president to work together with Congress on anti-terrorism policies, so "we don't have to get into butting heads over who can and who can't." Obtaining congressional authorization is preferable, it seems, but not necessarily required. When Sen. Russell Feingold (D-Wis.) squarely asked Mukasey "whether the president can authorize violations of a statutory criminal prohibition" regarding surveillance, he avoided a direct answer, saying he was not familiar enough with the details of the NSA program and referring again to the FISA gap discerned by Griffin Bell, who declared that the statute "does not take away the power of the president under the Constitution."

Given this ambiguity, Mukasey's vow to resign rather than go along with presidential decisions he considers unconstitutional, which The Washington Post played up in its story about the hearing, is not all that encouraging. The key question is how inclined Mukasey is to think that whatever the president wants to do is by definition constitutional.

Here is the transcript of the hearing. Here are my columns on why Gonzales was bad and why Mukasey might be better.

Comments

|10.18.07 @ 12:20PM|#

It's great that Reason is covering the AG hearings, but I am curious as to why the staff over here hasn't chimed in about the Telecom immunity crap that is going on in the senate.

|10.18.07 @ 12:23PM|#

The title of Attorney General should be changed to Executive Monkey

|10.18.07 @ 12:23PM|#

Yesterday's confirmation hearing for Michael Mukasey, President Bush's nominee for attorney general, provided a bit more evidence that Mukasey has more respect for the rule of law and a less expansive view of executive authority than Alberto Gonzales. I know, I know: That's not saying much.

But isn't respect for the rule of law generally considered a bad thing around here?

|10.18.07 @ 12:31PM|#

But isn't respect for the rule of law generally considered a bad thing around here?

Yes Dan, libertarians just hate following the Constitution. Absolutely hate it. /sarcasm

|10.18.07 @ 12:35PM|#

"Mukasey not only said torture is wrong, contrary to American values, and illegal; he also indicated that the president is not free to disregard laws against torture in the name of national security."

The Torture Memo agreed with all of that--the questions was what constitutes torture. According to the memo, something could be cruel, inhuman or degrading and still not constitute torture if it didn't induce pain of a sufficiently extreme intensity.

"Later, in an exchange with Sen. Arlen Specter (R-Pa.), he agreed that the president is bound to "follow the statute" banning "cruel, inhuman or degrading treatment" of detainees."

I'd consider that a box checked, but aren't they bound by treaty for that?

Follow the statute? ...are they suggesting that this question is something Congress and the President can get together and work out among themselves? It's not as if the problem with torture is a lack of congressional oversight.

|10.18.07 @ 12:35PM|#

While Mukasey wiggles about illegal surveilance, an article is on the Web today about airport security. At LAX, 75% of the fake bombs on carry-ons got through. At O'Hare it was about 50%. Officials are said to be "shocked"

The problem with this administration's approach to security isn't a lack of sincerity or good intentions: they are just dumb and naive. They talk about the need for additional "powers" to protect us all, and we end up with an army of people at airport confiscating shampoo and water bottles.

Before we inaugurate a new President or an Attorney General, we should make them take a basic intelligence test.

|10.18.07 @ 12:36PM|#

Chicago Tom (and everyone else)-

Glenn Greenwald has a good post on the topic of the telecom immunity scam today at Salon. Definitely worth a read.

thoreau|10.18.07 @ 12:52PM|#

I'd like to be optimistic, but this gang gets zero benefit of the doubt on its nominees. Zero.

Consider this:

When Leahy asked whether there is "such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violate the law," Mukasey said, "Not that I'm aware of."

Not that he's aware of. That says nothing about whether some soon-to-be-discovered legal theory could surface in a memo and persuade him.

Am I nitpicking him? Yes. But this gang gets zero benefit of the doubt, and the same holds for their nominees.

x,y|10.18.07 @ 12:52PM|#

Second one of the day:

Touche Dan T.

Episiarch|10.18.07 @ 12:55PM|#

The only thing to be optimistic about is that it is unlikely they could have as big a stooge as Gonzales again, and they will be sensitive enough to the beating they took over Gonzales to be more careful this time.

That being said, they will still try and put in someone who will give them as much as they think they can get.

z|10.18.07 @ 1:19PM|#

I concur that Dan T. is the tops.
His intellectual rigor is unrivaled amongst the lower apes.

Koko the Signing Gorilla|10.18.07 @ 1:21PM|#

rigor. kiss kiss. hard. plank. triceratops.