The nominee is unresponsive
AFTER REASSURING senators Wednesday that he would not take orders from political aides in the Bush White House, Michael Mukasey yesterday gave Judiciary Committee members reason to wonder if he would be much different from former attorney general Alberto Gonzales on other issues. Gonzales resigned under fire in August in the face of allegations that he presided over a house-cleaning of nine US attorneys for partisan political reasons and then made misrepresentations in testimony to Congress.
In the second day of his confirmation hearing to succeed Gonzales, Mukasey, a former federal judge, declined to say whether the simulated drowning technique of waterboarding is torture. He also repeated President Bush's belief that the resolution passed by Congress just after Sept. 11, 2001, gives the president the right to ignore a 1978 law banning warrantless wiretapping of Americans.
His answer on waterboarding - "if it amounts to torture, it is not constitutional" - disappointed Senator Sheldon Whitehouse of Rhode Island. "That is a massive hedge," Whitehouse said. "I am very disappointed in that answer. I think it is purely semantic."
Mukasey's position on whether the president's secret wiretapping violates the 1978 Foreign Intelligence Surveillance Act drew a rebuke from a Republican on the committee, Arlen Specter of Pennsylvania. "Judge Mukasey," Specter said, "I don't think anybody ever really seriously contended that our resolution . . . authorizing the use of force encompassed a violation of FISA [the Federal Intelligence Surveillance Act]." Senator Dianne Feinstein of California said that in congressional debate before passage of the resolution, wiretapping without warrants "was never discussed. It never came up."
Mukasey has also left senators in doubt about how hard he would work to find out whether Justice Department officials acted improperly in the US attorneys purge. He was unwilling to assure Senator Patrick Leahy of Vermont that he would pursue contempt charges to get testimony on the firings from the former White House aide Karl Rove. Leahy was so dissatisfied that he asked to have Mukasey's answer in writing before the committee votes on confirmation.
Nothing that Mukasey said, or left unsaid, in his testimony amounts to the bombshell that committee members feel would be required to turn the panel against his confirmation. He might indeed be the most independent and least ideological nominee that Bush would ever name. But his testimony provided little evidence that he would act decisively to find out how, under Gonzales, the Justice Department became an enforcement arm of the White House political operation. The country needs a check on the Bush-Cheney campaign to expand presidential power, not another enabler.
