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.
If senators had been hoping that President Bush's nominee for attorney general would close the door on using harsh interrogation techniques on terrorism suspects, they were disappointed by the answers provided by retired federal judge and attorney general-designate Michael Mukasey.
When Sen. Sheldon Whitehouse (D-RI) asked directly whether Mukasey thought a technique that simulates drowning, known as waterboarding, is constitutional, the nominee was equivocal. He danced around the issue of whether waterboarding actually is torture and stopped short of saying that it is.
"If it amounts to torture," Mukasey said carefully, "then it is not constitutional."
Whitehouse said the answer amounted to pure semantics.
"I am very disappointed in that answer," Whitehouse said.
"Sorry," Mukasey responded quietly.
The waterboarding question comes in response to an executive order that President Bush issued this summer that permitted the use of some harsh interrogation techniques. The order stopped short of listing them; the administration has refused to say whether waterboarding was on the list. Congress has banned waterboarding in a detainee treatment law.
Senate Democratic Whip Dick Durbin (D-IL), asked Mukasey if he could shed some light on the matter.
"I'm hoping that you can at least look at this one technique and say, 'That clearly constitutes torture. It should not be the policy of the United States to engage in waterboarding,'"
"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," he said. When asked about it again by Senate Judiciary Chairman Patrick Leahy of Vermont, Mukasey allowed that if waterboarding were actually defined as torture, then it could not be permitted by the president.
"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.
Senators also sought to pin down Mukasey about his views on executive authority. They asked when, if ever, the president should be permitted to override laws that Congress has passed. Mukasey, again, equivocated.
"We are not dealing here with black and white," he said. "Which is why it's very important that push not come to shove, because the result could be not just divisive but disaster."
Lawmakers focused in particular on wiretapping — and when the president could skirt a special Foreign Intelligence Surveillance Act court and order wiretaps on his own. Mukasey said that when the president had the choice of staying within the prescriptions of the FISA law, he ought to.
Mukasey spoke more directly about legislation now under consideration that would shield journalists from having to reveal their sources. The so-called shield law would establish standards that would limit the power of federal authorities to force reporters to testify or disclose documents or sources they have used in their reporting.
There has been a groundswell of support for the law in the wake of a case in which a covert CIA operative, Valerie Plame, was outed two years ago. A court demanded to know the source of the leak; Judith Miller, who was then a reporter with The New York Times, ended up going to jail for 85 days for refusing to disclose who gave her the story.
Mukasey said the shield law wasn't necessary. "The system has worked passably well up until now," he told the committee.
He said that the problems with protecting journalists could be remedied by tinkering at the edges of procedures at the Justice Department. "You can adjust the regulation, you can adjust the procedure, you can put more levels in," he said. "It becomes much harder when it's etched in stone in the form of legislation. And that is part of the reason for my unease."
President Bush has said he would veto the shield law. The administration's argument is that subpoenas for reporters are relatively rare, and a shield law would make it hard to track down people who leaked classified information. Mukasey said the legislation, as written, sets too high a legal threshold for prosecutors to meet. They will have to prove that the disclosure is needed to prevent an attack, and that is difficult to do or prove.
Sen. Arlen Specter (R-PA) supports the shield law. He asked Mukasey to list his specific objections in writing and submit them to the committee. Mukasey agreed to do so.