Mukasey Nomination Hearings Go Smoothly

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Retired judge Michael Mukasey, the nominee for attorney general, returns to the Senate Judiciary Committee for a second round of questioning. He says torture is illegal, but did not specify what techniques constitute torture or what methods would be banned.

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.

Copyright © 2007 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

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Mukasey Vows Independence from White House

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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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