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Senate Judiciary Questions Nominee Mukasey in Confirmation Hearing

October 17, 2007 at 6:20 PM EDT

JIM LEHRER: Next, Mukasey at the bat. NewsHour congressional correspondent Kwame Holman reports.

SEN. PATRICK LEAHY (D), Vermont: These hearings are about a nomination, but the hearings are also about accountability.

KWAME HOLMAN: Senate Judiciary Chairman Patrick Leahy made clear today’s hearing was as much about former Attorney General Alberto Gonzales as it was about the man hoping to succeed him. New York Democrat Chuck Schumer agreed.

SEN. CHUCK SCHUMER (D), New York: Our investigation this year demonstrated the department’s prior leadership sorely lacked credibility, competence, independence. Against that backdrop, and with only 14 months left, the department does not now need a series of bold initiatives. Rather, it needs steady leadership. This is, we might say, a rebuilding year.

KWAME HOLMAN: It was Senator Schumer who recommended to President Bush that nominating Michael Mukasey, a retired federal judge from New York, could be the first step in that rebuilding process. And so senators grilled Mukasey on several controversies that marked Gonzales’ tenure, most concerning national security and the president’s war on terror.

Mukasey immediately tried to assuage their concerns.

MICHAEL MUKASEY, U.S. Attorney General-Designate: Protecting civil liberties and people’s confidence that those liberties are protected is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us.

KWAME HOLMAN: But several senators still wanted specific answers. Leahy asked about the 2002 memo, signed by then-Assistant Attorney General Jay Bybee, that authorized harsh interrogation tactics.

SEN. PATRICK LEAHY: Do you believe that the president has the authority under any circumstances to exercise a so-called commander-in-chief override and immunize acts of torture, as the Bybee memo argued?

MICHAEL MUKASEY: Torture is unlawful under the laws of this country. The president has said that in an executive order. But beyond all of those legal restrictions, we don’t torture, not simply because it’s against this or that law, or against this or that treaty. It is not what this country is about; it is not what this country stands for; it’s antithetical to everything this country stands for.

The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary.

Presidential torture power

KWAME HOLMAN: Mukasey later responded to a question from Illinois Democrat Dick Durbin as to whether the president could override a congressional statute banning torture.

SEN. DICK DURBIN (D), Illinois: I would like some clarification on that, if you would, please.

MICHAEL MUKASEY: There have been statutes that Congress has passed that every president, since the time they were passed, has taken the view are unconstitutional, in that they encroach on the president's power or the president's authority.

The most notable among them -- at least to me, the one that comes to mind -- is the war powers resolution. We all know that it's there. We all know that every president since the time it was passed has taken the view that it is unconstitutional and will not be obeyed.

Mercifully, we have never come to a test of that, and I hope we will never come to a test of that. What's happened is that each branch has understood that push can't come to shove on certain issues, that we have to try to work it out in the way people work things out in a democratic society, such that not everybody gets everything they want, and sometimes both sides walk away saying, "Could have beat them." But we don't have to find out who could have beaten whom.

KWAME HOLMAN: Russ Feingold, Democrat of Wisconsin, pressed Mukasey on the president's terrorist surveillance program using domestic wiretaps, which Feingold believes violated the law.

SEN. RUSS FEINGOLD (D), Wisconsin: When we met a few weeks ago, I asked about your view of the legality of the NSA's warrantless wiretapping program, as described by the president. You said that you were, quote, "agnostic," unquote, about whether the president can authorize violations of a statutory criminal prohibition.

MICHAEL MUKASEY: The reason for my expression of agnosticism -- and I thought it concerned the terrorist surveillance program -- was that I am not familiar with that program. I can't possibly be familiar with that program. And for me to make a categorical statement with regard to that program, one way or the other, I think would be enormously irresponsible.

Upholding the Patriot Act

KWAME HOLMAN: Kansas Republican Sam Brownback wanted assurances Mukasey would enforce current intelligence-gathering laws. He questioned Mukasey about a recent federal court ruling against provisions of the Patriot Act.

SEN. SAM BROWNBACK (R), Kansas: On September 26th, a district judge in Oregon struck down two provisions of the Patriot Act dealing with searches and intelligence-gathering. And I'm sure you followed the various legal rulings on provisions of intelligence-gathering and the Patriot Act. What's your response to this ruling? And how would you deal with it as attorney general?

MICHAEL MUKASEY: I've not looked at the ruling in detail. But the one thing I know about my own rulings as a district judge is that they are only as durable as the time it takes to get it to the circuit. And I assume, without knowing, that that decision will be appealed to the Ninth Circuit, if necessary, to the Supreme Court, and that the word of a district judge, although persuasive and obviously dispositive in the case before that judge, is hardly ever the last word on any subject.

KWAME HOLMAN: The ranking Republican on the committee, Pennsylvania's Arlen Specter, asked if Mukasey believed detainees held at Guantanamo Bay should be granted habeas corpus rights, the ability to challenge their detention in a U.S. court. The Supreme Court will hear arguments on that issue in December.

SEN. ARLEN SPECTER (R), Pennsylvania: Is there any justification for interpreting the constitutional right to habeas corpus in a narrower way than the statutory right?

MICHAEL MUKASEY: Senator, that -- as I understand it, that question and related questions are squarely before the court in Boumedienne, and I'm going to have to do -- to carry into...

SEN. ARLEN SPECTER: Judge Mukasey, you're punting now.

MICHAEL MUKASEY: That's right, because I'm going to have to do what I was told to do when I was a kid, which is, I have to watch my mouth about this.

KWAME HOLMAN: Wisconsin Democrat Herb Kohl followed.

SEN. HERBERT KOHL (D), Wisconsin: Are you prepared to recommend to the president that we close Guantanamo?

MICHAEL MUKASEY: I think I am prepared to say that we need to get the best advice and the best ideas that we can and act responsibly, with the goal of closing it down because it's hurting us. That I'm prepared to say. And I think, as regards to this president, I think I'd be preaching to the converted. I think he understands that. I think he has said that he understands that Guantanamo has hurt us.

Politics in the Justice Department

KWAME HOLMAN: Kohl also asked Mukasey about those firings of nine U.S. attorneys last year, which many Democrats charged were for political reasons.

SEN. HERBERT KOHL: How will you ensure that politics plays no role and that there is no appearance that politics plays a role in cases brought by the Justice Department?

MICHAEL MUKASEY: Any call to a line assistant or to a United States attorney from a political person relating to a case is to be cut and curtailed, and that person, that caller, is to be referred to the few, the very few people at the Justice Department who can take calls from elected officials.

Regardless of that, hiring is going to be based solely on competence and ability and dedication, and not based on whether somebody's got an R or a D next to their name.

KWAME HOLMAN: Mukasey will take another round of questions tomorrow. However, Chairman Leahy already has said he expects Mukasey to win easy confirmation.