Attorney general nominee endorses expansive presidential authority

Attorney general nominee Michael B. Mukasey suggested on Oct. 18 that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief. Under questioning about the Bush administration's warrantless eavesdropping program, Mukasey said there may be occasions when the president's wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps. In such a case, Mukasey said, "the president is not putting somebody above the law; the president is putting somebody within the law.... The president doesn't stand above the law. But the law emphatically includes the Constitution." Sen. Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, said he was "troubled by your answer. I see a loophole big enough to drive a truck through." During a second day of hearings on his nomination, Mukasey defended several of the Bush administration's most controversial legal policies. Mukasey, for example, endorsed the administration's views of expansive presidential authority in the use of executive privilege, saying it would be inappropriate for a US attorney to press for contempt charges against a White House official protected by a claim of executive privilege. Mukasey also demurred when he was repeatedly asked whether a simulated drowning technique known as waterboarding constitutes unlawful torture. Mukasey had strongly condemned the use of harsh interrogation tactics the day before and said that the president could not order treatment that violated constitutional prohibitions. But Mukasey said he could not elaborate on what techniques might be allowed, and specifically refused to answer questions from Democrats about whether waterboarding specifically was unconstitutional, saying he did know enough about what the technique entailed. "If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said. Leahy told reporters that he was concerned about a "sudden change" in Mukasey's answers regarding the limits of presidential power. "There were far clearer answers yesterday than there were today," Leahy said. Mukasey also declined to directly answer some questions related to controversial surveillance, detention and interrogation issues, and he suggested that in some policy areas his views might differ little from those of his predecessor. Mukasey also declined to say whether the president could order a violation of federal surveillance law. Mukasey also expressed conservative views on social issues as divergent as obscenity and immigration, saying he would consider more robust prosecution of those caught being in the country illegally. Most of the committee's Democrats, including Leahy, nonetheless repeated earlier predictions that Mukasey will be confirmed easily and with strong bipartisan support. "I'm encouraged by the answers," Leahy told reporters. Under questioning from Leahy, Mukasey promised to recuse himself from any investigations that might touch on the GOP presidential campaign of former New York mayor Rudolph W. Giuliani, a longtime friend and political ally.