Mukasey won't give his views on method of interrogation
WASHINGTON - The confirmation hearing of Attorney General-designate Michael B. Mukasey turned contentious yesterday as Senate Democrats accused the nominee of dodging questions about a controversial interrogation technique and backtracking on statements he made about the obligations of the president to follow the law.
In a testy final day of questioning before the Senate Judiciary Committee, Mukasey drew the wrath of some Democrats on the panel when he refused to say whether he believed that so-called waterboarding, a technique that simulates drowning, constitutes torture that is prohibited by the Constitution.
Waterboarding has become a flash point in the debate over the limits of US interrogation policy since the launch of the Iraq war. And it was targeted by Congress in legislation in 2005 outlawing "cruel, inhuman, or degrading" punishment.
"I don't know what's involved in the technique," Mukasey said in an exchange with Senator Sheldon Whitehouse, Democrat of Rhode Island. "If waterboarding is torture, torture is not constitutional."
Said Whitehouse: "That's a massive hedge. I mean, it either is or it isn't." He gave a brief description of the practice, but Mukasey still declined to offer an opinion as to its lawfulness.
"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."
The exchange marked some of the first serious criticism of the nominee and contrasted with the first day of hearings Wednesday, in which Mukasey was praised for being willing to take on the job of restoring the beleaguered agency. His evasive answers yesterday unnerved Democrats who viewed the last attorney general, Alberto R. Gonzales, as lacking candor, and are hoping for a fresh start under the former US district judge.
Mukasey, 66, remains on track to be confirmed to head the Justice Department, but Senator J. Patrick Leahy, Democrat of Vermont and the Judiciary Committee chairman, indicated that a Senate vote could be delayed while the panel explores his views.
"I am concerned that on a number of your answers yesterday, there was a very bright line on questions of torture and the ability of an executive, or inability of an executive, to ignore the law," Leahy said. "That just seems nowhere near as bright a line today."
Leahy wondered out loud whether Mukasey had received criticism from White House officials overnight after a performance Wednesday that enthused and encouraged members of both parties. Mukasey said he had received no such criticism.
Mukasey was also accused of backtracking on statements he had made Wednesday that the president had to follow the law like any other citizen.
He told Leahy yesterday that he believed there might be times that the president, in order to defend the country, can ignore laws that Congress enacts. That authority, he said, is embedded in the Constitution.
The issue has been of concern to lawmakers since media reports two years ago disclosing how the Bush administration ignored the federal wiretapping law to launch a warrantless antiterrorism program. Congress and the White House are negotiating a new law, and Democrats want assurances that President Bush will operate within it.
"Can a president put somebody above the law by authorizing illegal conduct?" Leahy inquired.
"The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution," Mukasey said.
Leahy: "I'm troubled by your answer. I see a loophole big enough to drive a truck through."
Senator Russell D. Feingold, Democrat of Wisconsin, said he found Mukasey's view "alarming."
"It sounds like overnight you've gone from being agnostic . . . to holding what is a rather disturbing view," he said. "You have said today that you believe the president may violate a statute if he is acting within his [constitutional] authority."
Mukasey said he was only stating a constitutional truism. "Each branch [of government] has its own sphere of authority that is exclusive to it," he said.
Leahy said he was also troubled by how Mukasey was interpreting the role of the Justice Department in prosecuting charges of contempt of Congress. Both the House and Senate have taken steps to hold several former White House officials in contempt for refusing to testify about the firing last year of nine US attorneys, which Democrats believe was politically motivated. The officials, including former political strategist Karl Rove and former White House counsel Harriet Miers, have claimed immunity under the doctrine of executive privilege. 