The Gap in Mukasey's Testimony

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.