The Gap in Mukasey's Testimony

When is the president authorized to break the law?


During his recent confirmation hearings, Michael Mukasey, the former federal judge nominated to be the next attorney general, conceded that "the president doesn't stand above the law." Yet Mukasey, who is expected to be easily confirmed, also suggested that the president is entitled to ignore certain laws.

Since the law "starts with the Constitution," he said, the president need not obey a statute that interferes with his inherent constitutional authority "to defend the country." Now that the War on Terror has replaced the Cold War as a reliable rationale for extending executive power, the breadth of this authority to defend the country will be a central issue in national politics long after Mukasey completes his service as attorney general.

Is protecting national security "a loophole big enough to drive a truck through," as Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) worried? Or is it, as Mukasey said it should be, a power the president will strive to exercise with the consent of Congress, acting without congressional support only in emergencies?

The Bush administration's track record on the surveillance, detention, and interrogation of suspected terrorists suggests Leahy's fears are justified. Even when there was plenty of time to seek congressional approval and every reason to think it would be forthcoming, this administration has chosen arrogant unilateralism over the cooperation Mukasey recommends so "we don't have to get into butting heads over who can and who can't."

Although the president is commander in chief of the armed forces, Congress has several explicitly enumerated powers related to national defense. In addition to the power of the purse, these include the power "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," and to suspend the habeas corpus privilege "in cases of rebellion or invasion."

If Congress passed a law that, say, purported to put the speaker of the House in charge of the armed forces, it would be clearly unconstitutional. Regulating the treatment of detainees, by contrast, is squarely within congressional authority.

In a sense, then, it's not surprising that Mukasey conceded the constitutionality of the Military Commissions Act, which established guidelines for detainee trials, and the Detainee Treatment Act, which bans "cruel, inhuman, or degrading treatment." Still, it's reassuring, since Mukasey was nominated by a president who initially tried to go his own way in these areas and who issued a signing statement that indicated he reserved the right to ignore the latter law when it was inconvenient.

That was how Bush treated the Foreign Intelligence Surveillance Act (FISA). Until Congress amended it last August, FISA required the government to obtain a warrant to monitor communications involving people in the United States. Yet for years Bush secretly authorized the National Security Agency to conduct such surveillance without court approval.

When asked about this program, Mukasey referred repeatedly to the "gap between where FISA left off and where the Constitution permitted the president to act." He cited Carter administration Attorney General Griffin Bell's statement that FISA "does not take away the power of the president under the Constitution."

Did Mukasey mean that the Constitution authorized the president to ignore FISA's warrant requirements, as his predecessor, Alberto Gonzales, argued? No matter how many times he was asked, Mukasey wouldn't say, instead retreating to the lame argument that Congress, without realizing it, amended FISA by authorizing the use of military force against the perpetrators of the September 11 attacks.

Even as the administration continues to insist that the NSA's warrantless surveillance was legal, it is pressing Congress to give the telecommunications companies that cooperated with the program retroactive legal immunity. Immunity for what? For assisting the government with its perfectly lawful surveillance?

Clearly, Bush wants to give these companies a free pass for breaking the law in the name of national security. They shouldn't get one, and neither should he.

© Copyright 2007 by Creators Syndicate Inc.

NEXT: The Wrong Kind of White

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Since the law “starts with the Constitution,” he said, the president need not obey a statute that interferes with his inherent constitutional authority “to defend the country.”

    Un, fucking, believable. The reason the president isn’t bound by law, is because the constitution supersedes the law, and the law is in conflict with this “constitutional authority” I just made up.

    You go to hell Mukasey. You go to hell and you die.

  2. The administration is still making this argument, and no matter how many times I turn it over in my head, it still comes out incoherent.

  3. Yeah, I thought the division of powers is that the President supervises the people doing stuff and Congress makes the rules for how stuff will be done.


    “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

    Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

    “Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

    Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

    “You may be treading on your interdiction of violating common sense,” Specter said.

  5. I’ve said it before (during Clinton) and I’m saying it now. There should be an absolute separation between the President and the AG and the AG and Congress. The President shouldn’t select the AG and Congress shouldn’t appoint the AG either. I’m not sure what the exact process should be but under the past two presidents we’ve seen AGs whose actions, at the behest of the incumbent president, have been highly suspect.

  6. I’m fairly certain the Senate Democrats are going to roll over and confirm this fool anyway…and I’m even more certain that joe will explain to us afterward why it was good and beautiful for them to do so.

  7. There should be an absolute separation between the President and the AG and the AG and Congress.

    Sounds like somebody wants a Public Censor. Any volunteers?

  8. Seriously, though, the only alternative to an appointed AG is an elected AG. That’s been tried in the States, and, frankly, hasn’t exactly been a recipe for success. The basic problem is that elected AGs are by definition politically ambitious prosecutors.

  9. You could always have an AG appointed to a fixed term, and make it so that the President can’t remove any Justice Department employees. The AG would then be independent of the President (since his continuance in office wouldn’t depend on the President) but would have the advantages of being appointed rather than elected.

    I dunno, just a thought. I’m not committed to this proposal, just speculating.

  10. This sort of thing is hideous, but I don’t think structural changes are the answer. We have an electoral process and all.

  11. All this stuff is explained in the secret appendix to the Constitution, written in invisible ink on the back of the document.

    If you could just get it out of the nitrogen-filled display case for a minute, I’d show you.

  12. One gap in Mukasey’s testimony not mentioned is the non-answer to “Is waterboarding torture?” If an attorney and former judge at this stage of the proceedings cannot decide, he should be disbarred as demonstrably incompetent. If a nominee for attorney general has decided but chooses not to share his decision with the vetting committee, he should be voted down.

Please to post comments

Comments are closed.