Washington President Bush's choice for attorney general, Michael Mukasey, embraced some of the administration's most controversial legal positions Thursday, suggesting that Bush could ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws.
Mukasey struck a different tone on the second and final day of his confirmation hearings, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president could not override constitutional and legal bans on torture or inhumane treatment of prisoners.
His shift prompted an unexpected clash with key Democrats on the Senate Judiciary Committee, although none said that Mukasey's confirmation was in question.
The panel's chairman, Sen. Patrick Leahy, D-Vt., who had heaped praise on the former judge's qualifications and testimony on Wednesday, told him that, "on a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law. That seems nowhere near as bright a line today."
Mukasey aroused Democrats' concerns by testifying that there may be occasions when the president's powers as commander in chief could trump a federal law requiring that a special court approve intelligence-related wiretaps. That answer jibes with one of the legal rationales used by the Bush administration in defense of its controversial Terrorist Surveillance Program, under which the National Security Agency eavesdropped on calls between people in the United States and those overseas without first securing a court warrant.
Mukasey also repeatedly demurred when asked whether an interrogation technique that involves simulated drowning, known as waterboarding, constitutes torture and is, therefore, illegal. "I don't know what's involved in the technique," Mukasey said. "If waterboarding is torture, torture is not constitutional."
"That's a massive hedge," responded Sen. Sheldon Whitehouse, D-R.I. "I mean, it either is or it isn't." Mukasey did not clarify his remark.
White House spokesman Tony Fratto defended Mukasey, saying he "is not in a position to discuss interrogation techniques, which are necessarily classified," because he was not briefed on such programs.
Waterboarding generally involves strapping the prisoner to a hard surface, covering his face or mouth with a cloth, and pouring water over his face to create the sensation of drowning, according to human rights groups. The practice has been prosecuted as torture in U.S. military courts since the Spanish-American War.
While Whitehouse and several other Democrats said Mukasey's new answers were disappointing, they did not indicate that they will oppose his confirmation. A committee vote on Mukasey's nomination could occur as early as next Thursday, with a full Senate confirmation vote likely by the end of the month.
"He's at least answered the questions, which is better than his predecessor," Leahy said, referring to the habit of Alberto Gonzales, who resigned last month as attorney general, of being unable to recall details or make clear declarations. "He's going to be different on Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale."
Amid charges by lawmakers from both parties that Gonzales had inappropriately politicized the Justice Department, Mukasey drew bipartisan praise Wednesday for promising to resign rather than implement policies that he believes violate the Constitution. But Mukasey also suggested that he would side with the Bush administration's views of presidential authority, a stance he made clearer Thursday.
Asked about executive privilege, a legal doctrine presidents have cited to avoid disclosing records related to their deliberations, Mukasey endorsed the administration's argument that it covers more than communications directly involving the president. He also said that it would be inappropriate - in a battle between Congress and the White House for access to such documents - for a U.S. attorney appointed by the attorney general to pursue contempt charges against a White House official who refuses access.
Several contempt charges were approved this summer by the House Judiciary Committee against current and former White House officials, over their refusal to testify in the ongoing congressional probes of the firings of nine U.S. prosecutors. Leahy suggested Thursday a "real probability" that more are on the way.
Some of the most tense exchanges at the hearing centered on whether the president must abide strictly by provisions of the Foreign Intelligence Surveillance Act, a 1978 law that governs clandestine spying in the United States. Mukasey suggested that the president could ignore a law, including the surveillance act, if it unduly impinged on his constitutional authority as commander in chief during war time.