Mukasey asserts his independence

WASHINGTON - President Bush's nominee to be the next attorney general, Michael Mukasey, said yesterday that he rejects legal theories that presidents have the constitutional power to bypass anti-torture statutes, and vowed to keep the Justice Department free from political influence.

Mukasey's answers drew an enthusiastic response from members of the Senate Judiciary Committee, which will vote on whether to recommend his confirmation to the full Senate. Several Democrats on the committee characterized his approach to the job as a major change from the controversial tenure of the last attorney general, Alberto Gonzales.

That seems to indicate that Mukasey, a retired federal judge, will be confirmed as the attorney general for the final 15 months of Bush's term - even though several of the nominee's answers signaled he might not completely break from the direction his predecessor established.

Gonzales resigned under pressure last month amid allegations that he had misled Congress about warrantless wiretapping and the firing of nine US attorneys, among other issues.

Mukasey said yesterday he believes that Bush's power as commander in chief allows the president, in some circumstances, to monitor phone calls and e-mail on US soil without a warrant, despite a 1978 surveillance law requiring authorities to obtain court permission first. Bush's legal team has advanced such a view, but Mukasey cautioned that he is "agnostic" about its legality because he does not know the classified details of Bush's program.

Mukasey suggested he might stand with the White House on another controversy: Gonzales's threat to forbid his office from prosecuting administration officials who, at the president's direction, disobey a congressional investigative subpoena. Gonzales outraged lawmakers with that prospect earlier this year.

"I hope and pray for a lot of things," Mukasey said. "One of them is that I don't ever have to make that decision."

Mukasey did, however, outline principles he would follow in such circumstances, which seemed to mollify Senator Patrick Leahy, a Vermont Democrat and harsh Gonzales critic who chairs the Judiciary Committee. Leahy remarked that Gonzales had suggested he would automatically block federal prosecution of a White House official if the president asserted executive privilege.

The confirmation hearing of Mukasey, who presided over the trial of defendants in the 1993 bombing of the World Trade Center, continues today. A panel of legal specialists will testify about rebuilding the Justice Department, where many top officials resigned amid the recent controversies.

Along with outlining his policies, Mukasey vowed that he would not allow the department to become politicized. Several senators referred to alleged political interference in prosecutorial decisions prior to last year's congressional elections - including accusations that Republicans in New Mexico and Missouri tried to use last-minute charges to influence the election.

Mukasey said he would ensure that prosecutors know not to announce politically-charged prosecutions in the period before an Election Day. He also pledged to ban any politician or political operative from contacting federal prosecutors about cases because the public must "have confidence in the administration of justice in this country."

Any attempted interference "is not to be countenanced," he said. "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."

If a Justice official attempted to hire or fire a US attorney for political reasons, "I'm going to get in the middle of it very fast and stop it," Mukasey said. He declared that career attorneys in the Justice Department's Civil Rights Division will know their job is to enforce antidiscrimination laws designed to overcome past injustices. And he rejected the selection of job candidates based on partisan credentials.

He referred to allegations that the Bush administration has hired more political conservatives to enforce antidiscrimination laws, as the Civil Rights Division's focus shifts toward reverse-discrimination cases involving white and Christian victims.

He said, "Hiring is going to be based solely on competence and ability" and not "whether somebody's got an R or a D next to their name."

Several lawmakers pressed Mukasey about secret legal opinions by the Justice Department's Office of Legal Counsel, which advises the president about whether proposed actions are lawful. The office has written classified memos advancing an aggressive view of a president's power to bypass laws and treaties governing detention, interrogation, and surveillance in recent years.

In 2003 and 2004, Jack Goldsmith, then the office's new director, withdrew several such memos involving torture and surveillance, saying they were flawed and violated the rule of law. But earlier this month, The New York Times disclosed that Goldsmith's successor, Steven Bradbury, signed off on new secret memos authorizing the CIA to use harsh interrogation tactics.

Now a Harvard law professor, Goldsmith wrote a memoir about his dramatic fights with Vice President Dick Cheney's top aide David Addington about whether Bush can legally bypass laws against torture and surveillance. Yesterday, Mukasey called Goldsmith's book "superb."

If confirmed, Mukasey said, he intends to "review the significant decisions of the Office of Legal Counsel, particularly those relating to national security" for himself to "make certain that they are [legally] sound."

"We've already had the experience of one of those opinions having to be withdrawn," he said, "and I want to make certain that the others that are in place are sound, and change them if they're not."