'The President Doesn't Stand Above the Law,' Except When He Does

I haven't seen the full transcript (the Senate Judiciary Committee has not posted it yet, and Nexis does not seem to have it either), but it sounds like Michael Mukasey's second day of confirmation hearings further diminished the reasons for hoping he has a less expansive view of executive authority than his predecessor did. Here is the New York Times gloss:

He suggested that both the administration's program of eavesdropping without warrants and its use of "enhanced" interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president's authority as commander in chief might allow him to supersede laws written by Congress.

Here is how Mukasey responded to the question of whether the president may authorize an illegal act: 

If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting someone above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.

To which Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) responded, "I see a loophole big enough to drive a truck through." The crucial question, of course, is how broad "the authority of the president to defend the country" is. At the extreme, it becomes indistinguishable from Richard Nixon's dictum that "when the president does it, that means that it is not illegal."

I think we can all agree that the president would not be bound by a law that, say, purported to put the speaker of the House in charge of the armed forces, which would be clearly unconstitutional. But since the Constitution explicitly gives Congress a role in national defense (e.g., "to declare war," to "make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," to suspend the habeas corpus privilege "in cases of rebellion or invasion"), the president cannot simply do as he pleases in this area. The treatment of detainees and NSA surveillance of suspected terrorists, both of which the Bush administration characterizes as military matters, seem to be squarely within Congress' authority to regulate. 

According to The Washington Post's story, "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." The shift was marked enough that Leahy wondered aloud whether administration officials had urged Mukasey to take a bolder stance on the question of Congress' authority to restrict the president's actions. Mukasey said he had "received no criticism" from the White House about his first day of testimony.