Mukasey Nomination Hearings Go Smoothly
STEVE INSKEEP, host:
Retired Judge Michael Mukasey faces more questioning by U.S. senators today. He is President Bush's nominee for attorney general. Now, if you listened closely to the first day of questions, you could hear clues to his chances of being confirmed.
And NPR legal affairs correspondent Nina Totenberg was listening.
NINA TOTENBERG: The age-old axiom of confirmation hearings is that if the senators talk more than the nominee, the nominee has done well. By that measure, Michael Mukasey had a very good day. His answers were so synced to the point and, in many cases, thoroughly none committal.
On the subject of torture, for instance, Mukasey's answers sounded more definitive than they actually were. During most of President Bush's first term, extreme interrogation techniques were authorized for use on suspected terrorists.
Although the president maintained the United States did not use torture, a Justice Department legal opinion defined torture very narrowly. It defined it as techniques that cause the equivalent of organ failure or death. When the opinion leaked to the press and a public furor ensued, the administration withdrew it, and Congress passed Senator John McCain's anti-torture bill, reinforcing treaties that bar the use of cruel, inhuman or degrading treatment.
Shortly thereafter, unbeknownst to Congress, the administration doubled back on the torture question with a new legal opinion that secretly authorized some of the same extreme interrogation techniques previously used.
Yesterday, nominee Mukasey was asked for his views as to whether those practices are legal.
Mr. MICHAEL MUKASEY (Retired Judge; Nominee, U.S. Attorney General): I have not been read in on - I think is the Washington expression - any classified program or information, including the classified information that relates to interrogation methods.
TOTENBERG: Mukasey went on to say that torture is illegal and antithetical to American values.
Mr. MUKASEY: We are parties to a treaty that outlaws torture. Torture is unlawful under the laws of this country. The president has said that in an executive order.
TOTENBERG: But Mukasey did not specify what techniques would constitute torture, or what techniques would be banned as cruel, inhuman or degrading. Asked about the administration's warrantless surveillance program, Mukasey said that, in his view, not all electronic surveillance must be submitted for approval to the special intelligence court under the Foreign Intelligence Surveillance Act known as FISA.
Mr. MUKASEY: Which is to say that there was some gap between where FISA left off and where the Constitution permitted the president to act.
TOTENBERG: That prompted this response from Democrat Russ Feingold.
Senator RUSSELL FEINGOLD (Democrat, Wisconsin): I find your equivocation here somewhat troubling. And FISA specifically states that it is the exclusive means for conducting foreign intelligence surveillance of people in the United States indicating Congress did not intend to leave any room for what Senator Leahy referred to as a commander in chief override.
TOTENBERG: On Guantanamo, Mukasey said he does not think prisoners are mistreated. And he added.
Mr. MUKASEY: I can't simply say we have to close Guantanamo because obviously the question that arises of what we do with the people who are there, and there is now no easy solution.
TOTENBERG: If Mukasey dodged the questions on national security to some extent, he was blunt in answering questions on the role he intends to play in the administration. Would he be willing to say no to the president?
Mr. MUKASEY: If the president proposed to undertake a course of conduct that was in violation of the Constitution that would present me with a difficult but not a complex problem. I would have two choices. I could either try to talk him out of it or leave.
TOTENBERG: As to the recent disclosures of political preferences in hiring and firing career Justice Department employees and questions raised about political interference in prosecutions, Mukasey said in essence, not on my watch.
Asked about the new election law rule book issued recently by the Justice Department after disclosures that the Bush administration violated rules that existed for decades barring indictments of political workers on the eve of an election, Mukasey had this to say.
Mr. MUKASEY: Obviously, the closer you get to an election, one has a charge that either deals with a candidate or it deals with an issue that can affect the outcome. The higher and higher has to be standard, and the greater and greater has to be the necessity for bringing the charge at a particular time in order to justify it.
TOTENBERG: Democrats also questioned Mukasey about President Bush's assertion of executive privilege in the ongoing probe of the mass U.S. attorney firings. In particular, he was asked about the president's claim of executive privilege in refusing to produce e-mails to the White House from the chairman of the Republican Party in New Mexico.
Mr. MUKASEY: I don't know what the situation was with respect to the chairman of the New Mexico Republican Party. I will admit to you that my first reaction to that section of the letter was, huh?
TOTENBERG: That kind of an answer as enough to convince Democrats that they had a straight shooter in front of them and that if he didn't want to commit himself now on national security questions, well, he'd have to answer questions at an oversight hearing in January.
Nina Totenberg, NPR News, Washington.
INSKEEP: Want to learn more on this subject? Well, you can download an NPR News special with analysis on yesterday's hearing on the nomination of Michael Mukasey. It's at npr.org.
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