Lawmakers Question Mukasey on Ideas

Congress questioned judge Michael Mukasey this week to determine whether he should succeed Alberto Gonzales as attorney general. Mukasey was asked about his beliefs on waterboarding and torture policy in general.

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LIANE HANSEN, host:

President Bush's nominee for attorney general heard words both tough and tender from the Senate Judiciary Committee this past week.

Members of the committee liked what they heard from Michael Mukasey during his first day of testimony. They were especially pleased to hear how Mukasey plans to differ from his predecessor Alberto Gonzales. The second day, though, was a little more testy. That's when the senators pressed Mukasey on the issue of torture.

NPR's justice correspondent Ari Shapiro has been covering the Mukasey nomination.

And, Ari, committee Democrats and Republicans were not admirers of Alberto Gonzales. How did Mukasey distinguish himself from the former attorney general?

ARI SHAPIRO: Well it's an understatement to say that they were not admirers of him and luckily for Mukasey that meant the bar was set so low that the very fact that he answered their questions just delighted senators. I mean, on the first day the senators were practically falling over themselves to thank Mukasey for being responsive, for being intelligent, for being all of these things that they did not consider the previous attorney general to be. And so there were certainly answers that they didn't like, but from the very beginning just the fact that this guy was ABG, anybody but Gonzales, made them very, very happy.

HANSEN: Elaborate a little bit. What aspects of Michael Mukasey's testimony seemed to impress the senators most?

SHAPIRO: The thing that he really hammered home was that there was going to be no political influence on prosecution. This was one of the things that Gonzales was criticized for the most. People said that he was just an open conduit to the White House and that he'd never stood up to political pressure from the White House. Whether that was true or not, Mukasey made it clear that under him there was going to be a real firewall. Here was one of his comments.

Judge MICHAEL MUKASEY (Attorney General Nominee): Partisan politics plays no part in either the bringing of charges or the timing of charges. And people in the department should not be authorized - people below a very small group at the top should not be authorized to take calls or make calls with political figures to talk to about cases.

HANSEN: Well, if the answer on partisan politics brought a smile to the faces of the members of the committee, what aspects of the testimony did the committee seemed to be find wanting?

SHAPIRO: There were two big things, torture and presidential authority. Now on the question of torture: On the first day Mukasey said torture is unconstitutional and the Democrats were all really happy to hear that. But then on the second day they started to get specific and try to pin down his definition of torture.

Senator Sheldon Whitehouse, a Democrat from Rhode Island, asked Mukasey about waterboarding, where a detainee believes he's drowning. And here was Mukasey's response.

Judge MUKASEY: If waterboarding is torture, torture is not constitutional.

Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): If it's torture? That's a massive hedge. I mean it either is or it isn't. Do you have an opinion on whether waterboarding is constitutional?

Judge MUKASEY: If it amounts to torture, it is not constitutional.

Sen. WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.

SHAPIRO: Mukasey probably has an opinion about whether waterboarding is torture but this is a guy who's about to take charge of the Justice Department and has not yet seen all of the classified memos. There may be investigations ongoing into whether people have committed torture. And so you could see he is trying with all of his might not to commit to this - not to give an answer to it and that made Democrats furious.

HANSEN: What are your contacts at the Justice Department saying to you about Mukasey and his testimony?

SHAPIRO: One of the things they're worried about is the Civil Rights Division. I've done a lot of reporting on morale problems and prosecution priorities at the Civil Rights Division and they were frankly disappointed with his answers there. They say this is a division that really needs some serious help.

HANSEN: So what kind of Justice Department does - would Mukasey inherit if he's confirmed?

SHAPIRO: Well, frankly, an empty one. I mean in the last year, so many top level officials have resigned that one of his top priorities is going to have to be just filling those jobs. One phrase that was really common in the Clinton administration was, personnel is policy. And so people are really going to be watching to see who he hires, who he puts in those jobs; whether they are people with political backgrounds or prosecutorial backgrounds, whether they seem to be independent or with strong ties to the administration, as a signal of kind of Justice Department that Mukasey's going to run for the last year of the Bush administration.

HANSEN: Realistically, though, I mean how can he fill those important positions when - I mean, basically, he can only offer people a one-year job.

SHAPIRO: Right. And frankly some of the positions won't get filled. Some of these positions will be occupied by people in an acting capacity for the next year. That's happened before and that's not a significant problem. Some of the positions may have people nominated for them but just because the position itself is so contentious the nominee might not get confirmed by the end of the term.

Other positions are very valuable, they might look good on a resume and Judge Mukasey has many, many contacts in the legal world from his nearly 20 years on the federal bench. And so he may be able to draw on his resources and his rolodex to try to get some people in those positions who might not otherwise have taken them if somebody other than Mukasey was attorney general.

HANSEN: You know Mukasey positioned himself as an independent legal thinker. How independent is an attorney general from the president?

SHAPIRO: Well, he carries out the president's law enforcement priorities, which is to say if the president wants to make human trafficking or obscenity or drug enforcement a priority then the attorney general will carry that out. But if the president is concerned that a specific Republican is not doing well in a district in a given state, it's the attorney general's job to say I'm not going to indict that Democrat for you just so the president wins the election. And some people were afraid that Alberto Gonzales was giving in to those kinds of political pressures.

The biggest difference between Mukasey and Gonzales seems to be this; while they both agree with a lot of what the president does, people said that Gonzales may have agreed with it just because it was what the president wanted to do. Mukasey actually seems to hold those positions independently. And while he may agree with the president on them, if the president wants him to do something that he thinks is improper, people have a stronger sense that Mukasey will stand up to the president and tell him no, where Gonzales seemed less likely to do that.

HANSEN: Ari Shapiro covers the Justice Department for NPR.

Thanks, Ari.

SHAPIRO: You're welcome.

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