Mukasey Confirmation for Attorney General to Start

Michael Mukasey spent nearly 20 years judging cases from the bench in New York. Now it's his turn to be judged. The Senate Judiciary Committee opens a confirmation hearing on Mukasey's nomination to be the next attorney general.

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Michael Mukasey spent nearly 20 years judging cases from the bench in New York. Today, it's his turn to be judged. The Senate Judiciary Committee opens a confirmation hearing this morning on Mukasey's nomination to be the next attorney general.

NPR's Ari Shapiro reports.

ARI SHAPIRO: Judge Michael Mukasey's confirmation has never really been in doubt. The top Senate Democrat Harry Reid predicted weeks ago that Mukasey would be confirmed barring a bombshell. And yesterday, just after meeting with Mukasey, Senate Judiciary Committee Chairman Patrick Leahy told a crowd of reporters…

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): I don't see a bombshell in the horizon. I see a man who has a potential to clean up the Department of Justice.

SHAPIRO: Still, Leahy promised to ask Mukasey tough questions at today's hearing - about torture, for example. Leahy told NPR he won't accept worn out platitudes like: this administration does not torture.

Sen. LEAHY: I think what we've had is a case where the White House has said, as most people would, well, we don't torture. But then waved around a legal document, which basically allowed torture. I want Judge Mukasey to make it very clear what will be legally allowed and what won't.

SHAPIRO: That may be difficult in an administration that has refused to discuss specific interrogation techniques.

Leahy has been fighting for years to see secret Justice Department documents describing the administration's policies on torture, domestic spying and other controversies. At this hearing, Leahy said, he'll focus on the future, not the past. He predicted that once Mukasey's confirmed, he'll make a good attorney general.

Sen. LEAHY: I could be a tough no nonsense attorney general and I'm happy with that. He's a conservative Republican, I have no problem with that, but I also want somebody who will not let anyone interfere with prosecutors doing their jobs.

SHAPIRO: It's not the first time Mukasey has been described as tough. A. Tom Goldman(ph) used to be a prosecutor in New York and he argued a case before Judge Mukasey. Goldman remembers an instance during the trial where the defense attorney called him Atom instead of Mr. Goldman.

Mr. A. TOM GOLDMAN (Former New York Prosecutor): And Judge Mukasey called him up at the sidebar and just pour into him.

SHAPIRO: Really?

Mr. GOLDMAN: Yeah. I guess he said, you do that again, I will break you.

SHAPIRO: He said, I will break you?

Mr. GOLDMAN: Yeah. He was really mad.

SHAPIRO: Goldman says one of Mukasey's greatest strengths is his firsthand experience with national security. As a New York judge, Mukasey presided over some of the most important terrorism cases in the country.

Mr. GOLDMAN: I think that Mukasey, more than most, realizes that even though we haven't had a major attack on American soil in more than six years now, that the threats out there.

SHAPIRO: On the home, Mukasey has received very positive reviews, even from defense attorneys who often disagree with him. But there are groups that oppose his nomination - human rights groups especially that object to some of Mukasey's writings about national security issues.

Mr. MICHAEL RATNER (President, Center for Constitutional Rights): This is not someone that we should trust with really fundamental rights and liberties.

SHAPIRO: Michael Ratner is head of the Center for Constitutional Rights. He doesn't believe Mukasey will do enough to protect individual rights in national security cases.

Mr. RATNER: It's difficult because I see people who - even friends of mine - say, well I've known him for 19 years, he's judicious, he's a decent guy. But when you're talking about the most major human rights crisis this country has faced - having to do with torture, renditions, preventive detention and the like - this is not the time when - because you've had a good relationship with someone, to have that be the factor.

SHAPIRO: Assuming Mukasey has confirmed, he has a difficult road ahead of him. Aside from the debates over torture, spying and executive privilege, many people have said morale at the Justice Department is at an all time low.

Harvard law professor David Barron says today hearing is Mukasey's first opportunity to turn that around.

Professor DAVID BARRON (Harvard Law School): What he says in those hearings will do a lot to convince the thousands of people working at the Justice Department that their new leader is going to be somebody committed to the rule of law and depends of the Justice Department in the way that the prior attorney general does not seem to have done.

SHAPIRO: The last attorney general, Alberto Gonzalez, was widely criticized by members of both parties for being too close to the president, for making inconsistent and sometimes contradictory statements under oath, and for hurting the Justice Department's credibility. Now Mukasey can describe how he plans to run things differently for the last year and a half of the Bush administration.

Ari Shapiro, NPR News, Washington.

AMOS: You can read a profile of the attorney general nominee at npr.org.

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Mukasey Vows Independence from White House

Download NPR's special one-hour wrap up of Wednesday's hearing:

Attorney General-designate Michael Mukasey testifies

Attorney General-designate Michael Mukasey testifies at his Senate Judiciary Committee confirmation hearing, Oct. 17, 2007. Mark Wilson/Getty Images hide caption

itoggle caption Mark Wilson/Getty Images

Mukasey Said ...


Read past comments from the attorney general nominee:

On the Jose Padilla Case

"Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results."— Wall Street Journal Aug. 22, 2007

On The Patriot Act

"I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization." — Wall Street Journal May 10, 2004

On Legal Rights of Foreigners in U.S. Custody

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules...that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality. — Wall Street Journal Aug. 22, 2007

Mukasey Profile

The career of Michael Mukasey, President Bush's pick to succeed Alberto Gonzales as attorney general, is inextricably tied to national security. Read a profile of the judge.

Attorney General-designate Michael Mukasey promised lawmakers on Wednesday that, if confirmed, he would follow the rule of law and take partisan politics out of Justice Department decision-making. At the end of Mukasey's first day of confirmation hearings before the Senate Judiciary Committee, most senators appeared pleased with his answers.

The former judge was grilled extensively about how he would fix many of the problems that have been linked to the last attorney general, Alberto Gonzales, who was accused of following a White House political agenda.

Mukasey promised to be a more independent attorney general and to work closely with Congress. He said he would resign if the president ignored his advice and took an action that Mukasey believed to be unconstitutional.

When asked by New York Democrat Charles Schumer whether he would have the courage "to look squarely in the eyes of the president of the United States and tell him 'no,' if that is your best moral and legal judgment," Mukasey replied with a simple "yes."

Still, the nominee was noncommittal when it came to questions concerning the administration's policies on interrogating terrorism suspects and surveillance of terrorism-related communications.

"I am certainly going to examine the underlying memos and the underlying facts," Mukasey said in response to a question from Committee Chairman Patrick Leahy (D-VT) regarding apparent Justice Department approval of harsh interrogation tactics such as simulated drownings.

Mukasey told lawmakers that he had yet to see classified information and memos related to the interrogation methods. "So I can't say that there's something that's out of line with the law in those programs until I see the programs, and see the memos, and see whether they are in alignment or not," he said.

Distancing Himself from Some Gonzales Policies

Mukasey did criticize a 2002 Justice Department memo that said President Bush had authority as commander in chief to override domestic and international laws prohibiting torture. Mukasey called the memo "worse than a sin." He said, "It was a mistake. It was unnecessary."

When asked by Wisconsin Democrat Herbert Kohl whether he would recommend the shutdown of the detention facility at Guantanamo Bay, Mukasey was more circumspect. "I can't simply say we have to close Guantanamo, because obviously the question then arises what we do with the people who are there. And there is now no easy solution to that."

He said he believes prisoners at Guantanamo are being treated humanely but said their prolonged detention has "given us a black eye."

Disavowing Partisan Politics

Mukasey also said that, under his direction, the department would not pursue political cases right before an election, except in highly unusual cases. Under Gonzales' leadership, the department filed voter fraud cases in Missouri shortly before an election — in violation of department policy.

Several senators told Mukasey that they expected him to rebuild public confidence in the Justice Department and to exert independence from the White House.

"There's a good reason why the rule of law requires that we have an attorney general and not merely a secretary of the Department of Justice," Leahy said. "This is a different kind of Cabinet position. It's distinct from all others. It requires greater independence."

Mukasey said partisan politics plays no part in the bringing of charges or the timing of charges. He also said that, if he's confirmed, only a few top Justice officials would be authorized to take calls from political figures.

Under Gonzales, a number of lower-level officials fielded calls from politicians about particular cases and the work of several U.S. attorneys, who were later fired.

"Legal decisions and the progress of cases are decided by facts and law, not by interests and motives," Mukasey told the committee. "So, too, the Justice Department's mission includes advising the other departments and agencies of government, including the president, on what choices they are free to make and what limits they face. Here, too, the governing standard is what the Constitution and the law permit and require."

There seemed to be little question that lawmakers consider Mukasey qualifed to head the Justice Department. But several noted that the agency is suffering from low morale, and one of his major tasks in the last 14 months of the Bush administration would be to restore the department's credibility.

A Washington Outsider

Mukasey has decades of experience as a federal judge, but most of it has been amassed outside of Washington — and that appears to be working in his favor. He has not been tainted by Washington politics, but neither is he a neophyte outsider.

During the course of his career, Mukasey has ruled on hundreds of cases, many having to do with national security. One such case was that of Jose Padilla, the so-called "dirty bomber," who was arrested on charges that he was plotting to detonate a radioactive bomb in the U.S. He was later convicted of separate terrorism charges in Miami.

In May 2002, Mukasey approved Padilla's arrest on a material witness warrant as part of the government's investigation of al-Qaida. He later questioned that decision. "The material witness statute has its perils," Mukasey wrote in the Aug. 22 edition of The Wall Street Journal.

He called on Congress to "fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results."

In the days following the Sept. 11 attacks, Mukasey approved secret warrants allowing government roundups of Muslims. Some civil-liberties groups question whether that was appropriate. They are expected to have a chance to testify Thursday.

With additional reporting by Eric Weiner.

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