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The crowds were smaller and the questions sharper during the second day of confirmation hearings for Judge Michael Mukasey to be attorney general. Senators tried to pin down the nominee on when he believes the president can ignore the Congress.
NPR's Ari Shapiro reports.
ARI SHAPIRO: Yesterday, Judiciary Committee Chairman Patrick Leahy seemed largely satisfied with Judge Michael Mukasey's answers. But by the lunch break today, Leahy told Mukasey that, frankly, he's concerned.
Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): A number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or the inability of the executive to ignore the law. That seems nowhere near as bright a line today.
SHAPIRO: Take for example this exchange between the nominee and Democrat Sheldon Whitehouse about a controversial interrogation technique where a detainee believes he's drowning. It's called waterboarding. And one senator noted that not only has Congress specifically outlawed the practice, but for more than 100 years, the United States has prosecuted people for doing it.
Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): Is waterboarding constitutional?
Mr. MICHAEL MUKASEY (Retired Judge, United States Attorney General Nominee): If waterboarding is torture, torture is not constitutional.
Senator WHITEHOUSE: If it's torture? That's a massive hedge. I mean, that either is or it isn't. Do you have an opinion on whether waterboarding is constitutional?
SHAPIRO: After a long pause, Mukasey repeated:
Mr. 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.
Mr. MUKASEY: Sorry(ph).
SHAPIRO: Although Mukasey would not define torture, he said the president cannot torture because the Constitution prohibits it. But Congress has outlawed plenty of things that are not mentioned anywhere in the Constitution, like waterboarding and domestic spying without a warrant.
Mukasey said, on those kinds of activities, the President may be able to use his constitutional authority to act outside of the laws that Congress has passed and the president has signed.
Leahy was incredulous.
Sen. LEAHY: That's been legislated and stated very clearly what must be done. If you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?
Mr. MUKASEY: That would have to depend on whether what goes outside the statute, nonetheless, lies within the authority of the president to defend the country.
SHAPIRO: Leahy told Mukasey…
Sen. LEAHY: I'm troubled by your answer. I see a loophole big enough to drive a truck through.
SHAPIRO: And Democrat Dianne Feinstein said Mukasey's answer threatens to undermine Americans' confidence that laws will be followed.
Senator DIANNE FEINSTEIN (Democrat, California): I think the big guarantee that we give our people is the guarantee of law to the greatest extent we possibly can.
SHAPIRO: Mukasey said it's always better for Congress and the President to work together. But he left the door open for the President to act against Congress' wishes without telling anybody. There were a few Republicans at today's hearing. One that did attend, Jon Kyl, asked whether Mukasey supports a federal shield law to protect journalists from being forced to testify about their sources.
Mukasey said he thinks the Justice Department polices itself well enough without a law.
Mr. MUKASEY: One thing about internal procedures is that if you need to change them, they're relatively easy to change. It becomes much harder when it's etched in stone in the form of legislation.
SHAPIRO: After today's somewhat rocky question and answer session, Chairman Leahy said he'll give a list of written questions to the nominee and schedule a vote once he gets the answers, which means the White House's stated goal of a committee vote this week is probably not going to happen.
Ari Shapiro, NPR News, Washington.
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